Freedom of information: current status, challenges and implications for news media
Full achievement of freedom of information still faces many obstacles…
Regardless of a remarkable trend toward adoption of FOI laws worldwide, international experience has shown this does not automatically translate into fulfillment of people’s right to information. Among other obstacles, freedom of information is undermined by weak mechanisms for access and enforcement, the bad state of record-keeping and archive management systems and poor monitoring of FOI implementation. Those requesting information, who are actually a minority in every country, often face excessively formal requirements to present requests, significant delays or high fees, burdensome systems for disputing FOI requests’ responses and thus often give up their quests. Exceptions to access through FOI laws are particularly controversial. The principle of maximum disclosure dictates that individuals should be granted access to all information held by public bodies, except for very limited and clearly specified categories, subject to harm and public interest tests. It is not unusual for exceptions, along with the reference to official secret acts, to justify arbitrary denials of information access.
These shortcomings illustrate that it is not enough to adopt an FOI law to guarantee the right to know, if governments are not equipped to provide timely responses to requests or proactively to make key categories of information available. This is where efforts and policies to build capacity of state institutions, implement effective information management systems, adequately keep records and progressively digitize and archive existing information are called for, along with creation of adequate enforcement and monitoring mechanisms and allocation of necessary financial and well-trained human resources. Nevertheless, obstacles to the right to know do not merely stem from lack of capacity. Perhaps the greatest challenge of all is the shift from a culture of secrecy to one of transparency. This entails a fundamental change in mindsets of politicians and bureaucrats, as well as building public awareness to encourage active exercise of the right to know.
Many countries have yet to adopt FOI legislation in accord with international standards. Some where FOI laws exist have experienced retreats in previous progress including legal amendments that entail the risk of curbing the right to know. Freedom of information seems to involve considerable obstacles at the local level in many countries, while efforts to advance it have not sufficiently expanded beyond the executive branch in others. Implementation challenges show that the enactment of an FOI law must be accompanied by efforts at least strenuous to ensure its potential is realized.
Freedom of information laws and the news media
An FOI law is a key component of an enabling environment for the news media, which are undermined if they cannot access government-held information. Conversely, even with an FOI law, public right to know cannot be effective without an independent, free press to disseminate information. Adoption of freedom of information legislation does not necessarily promote freedom of expression and freedom of the press. There are examples of bad FOI laws that actually reinforce secretiveness.
The news media have often played an important part in advocating FOI laws. But some journalists may oppose FOI legislation for fear of losing ground as privileged providers of information that they can find by other means. They may also think the potential benefits of an FOI law would be outweighed by FOI request processing times (particularly since, according to some accounts, requests presented by journalists appear to be delayed on purpose in certain cases), as well as often time-consuming appeals processes. Many journalists have in fact made significant use of FOI laws, finding them especially relevant for investigative journalism. Besides journalists themselves, the positions of media outlet owners toward freedom of information, and the level of ownership independence and concentration are pivotal. If media outlets are strongly linked to government and the latter opposes FOI reform, then outlet owners are unlikely to support it, or to allow publishing of stories based on FOI requests that negatively portray government. Conversely, owners of more independent media outlets may encourage journalists to support approval of FOI legislation and use of it after its enactment.
Food for Thought:
- Setting-up adequate mechanisms for access to public information and its proactive disclosure, as well as related enforcement, record-keeping and archiving (backed by funding and human resources needed for them to work) is central to successful implementation of FOI laws. However, these could still be hindered if a culture of secrecy continues to prevail. What steps could be taken to encourage a shift toward a culture of transparency?
- Post-9/11, heightened national security concerns have come to the fore in debates of exceptions. Such exceptions are linked to sensitive matters legitimately justifying stricter controls, yet they can also lend themselves to abuse. How can this issue be addressed?
- How can news media involvement in FOI advocacy efforts positively contribute to adoption and quality of FOI legislation? If media actors lead an FOI movement, how can they ensure broad public support, countering the false idea that FOI mainly concerns the press?
- How can news media support effective implementation, enforcement and monitoring of an FOI law? How can the media help create demand and promote direct public exercise of the right to know?
- How can the work of journalists benefit from FOI laws? What skills do journalists need to take advantage of FOI legislation?