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SSAULT ON THEIGHT TONFORMATION INHE WEST

n India, right to information is no more an alienconcept. Rather it is in news every day, generallyfor good reasons. While Indians were empowered

with this right recently, the first access legislation,namely, Access to Public Records Act, 1766 ofSweden is more than 240 years old. However, it was in1946 that the right achieved the status of fundamentalhuman right through a resolution by the GeneralAssembly of the United Nations in its first session.

Is this race for having an access legislation driven b)the highest traditions of democracy? Is it the desire ofthe political leadership to redefine democracy \\-hereexecutive is made accountable not just to legislaturebut to the common masses (read voters) on a day to

rabodh SaxenaAs a matter of fact, the history of right to informationcan be divided in two phases, namely pre and postcold war era. Till 1989, only 14 countries had enactedaccess legislation over a period of a quarter century.The law was confined to rich countries, mainly stable

aking a refreshingly new look at the euphoria democracies in the West. The perquisites for operatinggendered worldwide hy right to ;,?formation such law were a professional civil service, human rightgislation, the author analyses the real, ojien hidden, traditions, independent judiciary, assertive media, andotives of governments. and their eagerness to share active non-governmental organisations. Support or

h' h h' .. technologically advanced and modern record keepinge trut Wit t elr citizens... ,~as also an essential reqUirement. It was conSideredIAS l?tficer l?f'the 1990 hatch. HP CatjJ:.e;-aild to be a luxury which could only be afforded by the

rrently posted as Secretary. Home Department. Mr rich and the advanced countries at a huge cost.xena holds a LL.M in International Human Rights, The collapse of the Cold war saw a spurt in accessndon School of' Economics. and is a well-known. legislations. The new 'Global Survey of Freedom ofernationally puhlished author on the suhject. Information Laws for 2006/ by freedominfo.org;records that now 68 countries have access frameworks,

generally formal legislations. The last decade itselfaccounts for half of them. Democratic giants likeIndia, United Kingdom and Germany joined the clubin 2005. The only notable exception is China, butChina is riding the high tide of technological andeconomic growth and currently can afford to tread anindependent path. HO\vever, it appears that forinternational consumption China too intends to put upa very limited access regulation framework, pennittinginformation retrieval in selected areas, before theBeijing Olympics 2008. Whether the extremelyrestricted regulations will extend beyond the event isanybody's guess ...

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day basis? Is there a global movement for creatingopen, transparent. accountable and participatorygovernance? The answer may not be as simple as itmay seem. It is intriguing as we see that a majority ofthese nations are not democratic in the real sense ofthe tenn. The list of these 68 countries includes a largenumber of erstwhile communist countries in CentralAsia and Eastern Europe - all unstable with weak, andif one may say, "undemocratic democracies". As manyas 28 countries adopted infonnation laws in the 1990s.The list also includes military regimes and some of theworst human right violators like Zimbabwe. Israel isanother controversial member of the access legislationclub. Pakistan is said to be operating an ordinance ofdubious validity and uncertain currency.If we closely look behind the veil, one can fathom themultitude of real reasons for enactment of accesslegislations. It is a known fact that President LyndonJohnson of the United States decided to take credit forthe Freedom of Infonnation Act of 1966 and dedicatedit to the people only after unsuccessfully trying all thetricks to block it. As a matter of fact, the tirst everlegislation of Sweden was enacted by the governmentof the day to bring out the 'misdeeds and omissions'of the previous regime. Soviet archives were partiallyopened by fonner President Boris Yeltsin to expose hispredecessors. Commentators are of the view thatrevenge is the major driving force in the erstwhilecommunist world - be it Estonia. Lithuania, Latvia. theCzech Republic, Slovakia. Bosnia and Herzegovina, orfor that matter, Bulgaria.t other places, scandals were the catalyst fornactments of infonnation laws, so as to buy peaceith a huge section of protesting citizens. Scandalsver police surveillance and government regulation ofndustry forced the enactment of Canadian federal lawn 1983, much after the provinces in Canada had theiraws on the statute books. Protest against awfulonditions of meat packaging industry and publiclood bank culminated in the Irish information law in997. A series of huge scandals one after the other,eginning with the Lockheed bribery case, left theapanese Government with no option but to adopt thecess law in 1999. The American law gained strengthnd its present reputation, only after the Watergate

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There is also a strong economic angle to the growth ofaccess ,legislations all over the world. In this age ofglobalisation and liberalisation, for a country topromote investment and attract FDI, it is essential toproject transparent and fast governance. Right toInfonnation is regarded as a sine qua non of aprogressive and less corrupt country. Multilateraldono~ agencies and international banks have includedthe presence of such legislation in their checklist forclearing projects. It is an open secret that PresidentMusharraf enacted the Ordinance in 2002 to satisfy thepreconditions of the International Monetary Fund.Multinational institutions have thus forced manynations to adopt access nonns.Looking at the global scenario, the swelling numbersdo give a legitimate reason for satisfaction. But oneshould not lose sight of the fact that legislation is notthe end. Who can appreciate it more than Indians, aseven the most well-read' cannot inventorise theunending plethora of laws, so many unknown and notinvoked. Philippines does not have a fonnal law,though the right to information was first included in its1973 Constitution, and expanded on in its current 1987Constitution. A 2001 survey co-organized by thePhilippines Centre for Investigative Journalism,showed Philippines to have the most liberal

. information regime in South-east Asia. 59% ofFilipinos answered "Yes" when asked if records wereavailable to the public. The right was a handy tool inthe hands of media and activists of Philippines inoverthrowing President Joseph Estrada. Zimbabwe, onthe other hand, has arrested activists and journalists,including foreigners, under its Access to Infonnationand Privacy Protection Act 2002, as the taw gives thegovernment extensive powers to control the media andsuppress free speech by requiring the registration ofjournalists, and prohibiting the "abuse of freeexpression. "Whatever be the motivation and intent, the accesslegislations have truly started serving the citizens. Inthe first three years of its enactment, more than half amillion Thais invoked their Official Infonnation Act.The way Sumalee, a Thai mother, secured admissionfor her daughter in a prestigious school by exposingthe admission scam through the Act, is now alegendary tale told to students of infonnation regime.

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The American law serves more than 2 millionrequests a year.The progress was smooth and satisfactory, by andlarge, till all hell broke loose with the collapse of theTwin Towers at New York on 11 September 2001,allegedly by AI Qaida. Immediately thereafter, theUS withdrew information regarding criticalinfrastmcture and about monitoring and inspection.work of federal agencies from the web. A panicstricken Superpower soon found natural allies inWestern Europe and allies Oul of convenience andcoercion elsewhere. US and its allies in tandem,launched a "global war on terrorism".They may not have reached the source of terrorism sofar and there may be serious doubts about thedirection and purpose of this war, but certainly thecu Iture of openness and transparency is among itsinitial casualties. Accordingly, access regime isfacing a new challenge from the increasedcoordination and networking among intelligenceagencies post 9/1 I. NATO insists that membersshould have laws on classification and unless alliesare assured that information will not be disclosed, itis not shared in the first place.Secrecy is now making its entry through thebackdoor. The most common method is to entrust thepublic functions to private bodies as the right of thecitizens expire once the function are transferred to theprivate actors. What we see today is a rush toprivatise management of water, electricity,communication, prisons, toll highways, bridges,hospitals, schools, defence, municipal water supply,air traffic control and almost all aspects of publicadministration. To ensure that private players are notaccountable to their clients, the contracts between thegovernment and the contractor provides that they willbe considered to be 'held' by the contractor and notthe government.The only country in the world, which enables citizensto access records of private companies if the same isneeded for enforcement of a right, is the Republic ofSouth Africa. This special provision owes itsexistence to the historical fact of ownership ofeconomic pO\\-er in the country resting with theminority white community, even though the political

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power has now shifted to the majority black.Elsewhere, a repeat is not expected as private playersare continuously enhancing their. influence in thepolity.Further, Certificates barring disclosures by Ministersare becoming common in developed countries. The1983 Access to Information Act in Canada wasamended by the Terrorism Act in November 2001,allowing the Attorney General to issue a certificate tobar an investigation by the Information Commissionerregarding information obtained in confidence from a"foreign entity", or for protection of national security,if the Commissioner has ordered the release ofinformation. The Australian High Court has recentlyruled that since a Minister is accountable toParliament, he is responsible enough to block anyinformation under the Act in public interest. WhiteHouse is now on more occasions in favour ofPresident's veto on disclosure, and such a certificate inUS is outside the realm of judicial scrutiny. Certificatebusiness is catching up in United Kingdom as well.Another mechanism of excluding citizens fromdecision making is to raise the level of crucialdecisions from the national, to the international level.Ironically, there is a huge gap between commitment ofmultilateral agencies for pushing access legislations inmember counties, and for transparency andimplementation of access principles in their ownorganisations. Only European Union has disclosurelaws comparable to national laws, as elsewhere thepublication is restricted. Therefore, once decisions aretaken at the forum of multilateral organisations, greatdeal of it moves out of the public domain. Should wecall it a case of double standards, or is it the naturaltendency to lay tougher standards for others, whileexcluding oneself from the rigours?A more subtle device is to raise the cost ofinformati

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n the United Kingdom, London is contemplatingSubstantial increase in fees through Freedom ofnformation and Data Protection (Appropriate Limitnd Fees) Regulations 2007, to strike what it calls theight balance between access to information for all andhe delivery of other public services. Currently, aequest can be refused if the cost of dealing with itxceeds 600. in the case of a Government department,r 450 for any other public authority. Staff time isorked out at 25 per hour, for determining whetherhe information is held, and for locating, retrieving andxtracting it; and in doing so the public authority mayggregate requests received from the same person, orersons who appear to be acting in concert, or inursuance of a campaign, within a period of 60rking days.

he proposed regulations allow the authorities tonclude reading time, consideration time, andonsultation time also in the calculation of theppropriate limit The Government argues that a smallercentage of requests and requesters were placing aisproportionately large burden on public authorityesources, at times to enable journalists to pen lead

obody can deny that there is merit in the argumentnd it can be empirically supported, but it is also aniversally accepted fact that substantial increase inost is sure to kill the right. The refusal of requestsill become a function of cost, irrespective of theublic interest involved. It is for this reason that theovernment is finding it very hard to push theegulations. It is interesting to note that thoughenerally London and Edinburgh do not agree onajor political issues, on sharing information even thecottish government is considering bringing in a newystem of charges for FOI requests.he enthusiasm about right to information has alsoeen dampened by vociferous protests by the privacydvocates. One man' s right to information is often ate cost of privacy of the other. Don't we get irritatedy a tlood of unwanted messages on our mobiles?lnerable personal data like births, deaths. marriages,

ivorces, property tax, vehicles, driving licences, courtcords, family court proceedings. bankruptcy,iminal cases reach people not connected with the

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Vol I No 2

issu~s, and misuse of this information is widelyreported. Instant access to social security numbers,addresses, phone numbers, credit card numbers, bankaccount numbers, tax information has created a newclass of identity thieves.Similarly, large-scale misuse of government data andbusinesses exploitation of commercially valuablegovernment data is commonplace in developedcountries. Digitisation is seriously compromising civilliberties as digital biographies are often used forinvestigative purposes by businesses, employers,private detectives.A worried House of Commons Standing Committeeon Human Rights stressed that "Everyone is therightful owner of their personal information, no matterwhere it is held, and this right is inalienable". In theUnited States, a law has been passed to protect theconfidentiality of driving licences details. Elsewhere,it is being realised that in the absence of privacy law,information may cause damage to the same civilliberties which an access law is supposed to promoteand protect. Hence the contlictbetween these two civilrights needs to be resolved harmoniously and fast.Finally a brief word about India as well. Indian law onright to information is a result of natural process ofmaturing of democratic forces over a period of time,since India attained independence. It is a matter ofsatisfaction that the newly released book Blacked Oul-Government Secrecy in the biformation Age - byAlasdair Roberts starts with the working of the Act inIndia. The Act is fast finding its roots but trivialisationof requests is a serious issue.Capacity building of stakeholders and expansion torural areas is the main challenge and so is thecapability of the Public Authorities to undertake suomoto publication of the maximum information. It hasalso to be appreciated by the government that merepassing of the law without proper budgeting for recordmanagement and data retrieval is not sufficient.It is calculated that in 2004, the. annual cost ofimplementing the Act in Canada was US$19.4 million,each request costing US$ 1,340. In Australia thecomparable figures are US$ 14 million and US$ 330respectively. The US spends $ I per head annually for

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administering the law. It has to be kept in mind that atbest on Iy . 1-2% of the cost of operating the law isrecovered in the form of fee and the rest has to comeas budgctal) support from the State. Unless there is areasonable budgetary arrangement provided. it will beditlicult to realise the optimum potential of the Act.It is a painful irony that this right is under the greatest,challenge in its birthplace, namely the developed andthe democratic Western democracies. which have beenthe cradle of human rights and liberalism. Threats ofterrorism. real and perceived, have robbed the essentialstrength of these societies considerably. Governmentsare competing among themselves to devise means todilute the access standards. Sometime the response isblatant as in case of so called anti-terrorism measures.At times the response is indirect through privatisation.use of disclosure barring certificates. decisions atmultilateral level. raising fees etc.Indiscriminate and ulterior use of law has exposed theright to opposition from persons concerned aboutunwarranted invasion of privacy rights. Unfortunately,the July 2005 bomb attack in London and the recentlypre-empted terror plan of blowing away planes in thesky have not helped the matter. It has come as anotheropportunity for the votaries of those who believed inthe words of Jonathan Lynn and Antony Lay in YesMinister that "Open Government is a contradiction inerms. You can be open or you can have a

he time for celebration is detinitely far away. Themphasis should be on regaining the status which theight till reccntly enjoyed in the western democracies.lse,\here, there is a need to provide space tor theight to stabilise itself. Indian bureaucracy and theitizens particularly have to learn to respect the spiritehind the right. The vigil and the struggle has to

to make this "second wave ofmocratisation" real and universal.

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