Right to Information (RTI) laws can be a useful instrument for improving transparency – if the political will for implementation is sustained, and if the broader governance environment provides the enabling conditions for the exercise of the law. A research project that studied the implementation of RTI laws in a number of countries showed that implementation has been very uneven across countries. In some countries, RTI laws had been leveraged effectively for extracting information in a number of important areas, ranging from public expenditures, to performance and procurement, and exposing instances of corruption. In other countries, the existence of an RTI law had little impact in any of these areas, and oversight and capacity building mechanisms had either not been set up, or not functioned effectively.
The findings of the study are not surprising. The implementation gap between de jure and de facto reforms in countries faced with capacity constraints and political economy challenges is well-known. Yet, international agencies have pushed policy reforms without adequate attention to the constraints and challenges of implementation. The pressure to win support and legitimacy with international aid agencies has been an important driver of the adoption of RTI laws. The right has also been recognized in international human rights conventions, and more recently has gained increasing international attention (for instance, the existence of a law is one of the considerations for membership in the Open Government Partnership). Further, pressure from domestic constituencies has also propelled political actors to champion the law. But, once passed, capacity limitations, the erosion of political will, and active resistance have been important impediments to realizing the potential of RTI.
This challenge of implementation persists across countries to different degrees (witness Tony Blair’s regret at having supported the United Kingdom’s 2001 Freedom of information Act, and shocking instances of RTI-related killings in India). But the experience of the countries studied also suggests that that RTI can be effective when the enabling conditions are conducive. Three broad dimensions might be identified. One, in countries where government effectiveness and rule of law tend to be stronger – as reflected in the broader quality of the civil service, quality of policy formulation and implementation, and the credibility of the government's commitment to such policies, civil servants are more likely to follow and implement the letter of the law. In the more developed countries, for instance, the UK among the case study countries, where these characteristics are strong, implementation measures were instituted more effectively. A traditional of bureaucratic formalism might also lead to implementation of at least the letter of the law, and might explain the way in which the law has been institutionalized in administrative processes in Romania.
Second, the capacity and influence of dedicated oversight and monitoring groups is important to keep up momentum for the implementation, and use RTI to uncover information on corruption or non-performance and demand corrective actions. In India, for instance, the capacity of both the nationwide civil society coalition dedicated to promoting RTI as well as grassroots groups across the country has been important in leveraging RTI to expose major corruption scandals, and resisting efforts to amend the scope of the law. The depth and diversity of these groups also matters. In Mexico and India, for instance, RTI has been used not only by larger, metropolitan NGOs, but by grassroots groups, and NGOs in the service delivery sectors. And the regulatory environment for voice and accountability and civil liberties – for instance media and press laws that encourage free expression and free association –have an important bearing on how effectively these groups can operate.
Third, the capacity and independence of complementary check and balance systems are important for the effective functioning of RTI. A strong independent oversight agency is important to sustain the momentum for the law, and ensure its effective implementation by serving as an impartial, independent mechanism for redress against non-compliance. The Federal Institute for Access to Information in Mexico has been the gold standard of an independent oversight agency, both as an adjudicator against non-compliance with the Mexican Transparency law, as well as in its promotional role. But the engagement of other check and balance institutions – parliamentary committees, courts, audit institutions, and anti-corruption agencies – is also important to ensure sanctions and follow-up actions when misgovernance or corruption are brought to light through RTI requests.
The relevance of these dimensions raises important questions about the usefulness of introducing RTI, where administrative capacity might be weak, the state less responsive to civil society pressures, and check and balance institutions not influential enough– as reflected, for instance, in Uganda and Albania, where there is little evidence of their respective RTI laws having had any impact. Clearly, the near universal recognition of the right to information as a fundamental right (regardless of whether it enables other economic and development outcomes or not) provides a compelling rationale for supporting its adoption. But, unless concerted efforts are made to address the broader enabling environment, and appropriate capacity building strategies are devised for poorer environments, RTI reforms will accomplish little.
Photo Credit: Kurt Carnemark/WB