Centre for Law and Democracy

The Centre for Law and Democracy (CLD) and the International Federation of Journalists (IFJ) have prepared a Note analysing the Right to Access Information Law, No. 11 of 2013, adopted recently by the government of the Kurdistan Region of Iraq. The Law is a relatively progressive piece of legislation, garnering 98 points out of a possible 150 on the RTI Rating (www.RTI-Rating.org), which would put it in 28th place globally out of 95 countries.

Click here for the Analysis
Click here to read the press release in Arabic

“It is very welcome that the Kurdistan Region has adopted this law, joining other democracies by putting in place a system for ensuring transparency in government,” said Toby Mendel, Executive Director, Centre for Law and Democracy. “While the Law is strong, there are a number of areas where it could still be improved.”

Areas for improvement include the following:
• The procedures for processing requests for information are too brief and overview in nature.
• Not all exceptions are harm tested and there is no procedure for consulting with third parties.
• There are no sanctions for obstruction of access or protection for good faith disclosures pursuant to the law.
• The Law fails to create a dedicated oversight body for information appeals (such as an information commission), instead allocating this task to the existing Human Rights Commission in Kurdistan Region.

“We welcome the adoption of this law in the Kurdistan region which will provide important protection for journalists so they can report on the performance of government and other public institutions without fear of punishment or reprisal,” said IFJ President Jim Boumelha.

For more information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

An assessment of Palestine’s draft Law on the Right of Access to Information by the Centre for Law and Democracy using the RTI Rating (www.RTI-Rating.org) has found that the draft would obtain a rather modest score of 92 points out of a possible 150, around the middle of the 95 countries globally with right to information (RTI) laws.

“The Arab world lags well behind other regions of the world in terms of adoption of RTI legislation,” said Toby Mendel, Executive Director of the Centre for Law and Democracy. “While we welcome this Palestinian initiative, we also note that the draft needs to be significantly improved if it is to provide a strong basis for realisation of the RTI.”

Click here to read the Recommendations
Click here to see the RTI Rating for Palestine
Click here to read the draft Law

A Note prepared by CLD makes a number of recommendations to bring the draft Law into line with international standards. Some key recommendations include the following:
• Requesters should not have to provide reasons for their requests.
• Public authorities should be required to provide assistance to requesters.
• All exceptions should include a harm test and public interest override.
• The independence of the oversight body, the Commissioner General of Information, should be enhanced.
• Officials should be protected where they disclose information in good faith pursuant to the law.

CLD urges relevant Palestinian actors, and in particular the Council of Ministers, to bring the draft Law more fully into line with international standards before it is passed.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

Specialist right to information organisations Access Info Europe and Centre for Law and Democracy led on the drafting of a set of recommendations for progressive improvements to the right to information (RTI) which should be introduced by governments participating in the Open Government Partnership.

These recommendations form the right to information (RTI) chapter of the Open Government Guide, which was released at the Open Government Partnership Summit in October 2013.

Click here to read the Recommendations

In addition to the key recommendation that States should adopt a law giving effect to the right to information which meets international standards, the chapter makes a number of recommendations for initial, more substantial, most robust and innovative steps to give effect to this fundamental right, including:

» Putting in place the required institutional structures for implementation of the law
» Expanding the scope of proactive publication
» Undertaking robust promotional measures, including by raising public awareness about RTI
» Implementing ‘transparency by design’, including by using digital technologies to integrate RTI into all stages of information preparation and processing

The Open Government Guide aims to help governments achieve key OGP goals by highlighting practical, measurable, specific, and actionable steps that governments can take across a range of cross-cutting areas. It was developed by the Transparency and Accountability Initiative along with expert organisations for each of the topics.

Access Info and the Centre for Law and Democracy call upon all OGP Participating States whose RTI laws achieve a score of less than 100 points on the RTI Rating, or which have not yet adopted an RTI Law, to include a commitment in their upcoming (second round) Action Plans to adopt or revise their RTI laws to bring them into line with international standards, as recommended in the RTI Chapter of the Open Government Guide. We also call on civil society to use the RTI Chapter of the Guide to assess the performance of their governments in this area and to make relevant recommendations for RTI implementation or law reform.

For further information, please contact:

Toby Mendel
Centre for Law and Democracy
e-mail: toby@law-democracy.org
tel: +1 902 412-0872
www.law-democracy.org
@law_democracy

The Trans-Pacific Strategic Economic Partnership Agreement (TPP) has been a magnet for controversy since its inception, largely due to the excessive secrecy in which it is being negotiated and rumours that its intellectual property provisions would threaten Internet freedom. Today, the Centre for Law and Democracy has released an Analysis which confirms that these fears are well founded and highlights the many proposals in the draft treaty which would harm freedom of expression online. The Analysis is based on a draft version of part of the TPP released by Wikileaks, said to be current as of the conclusion of the August round of talks.

Click here to read the Analysis
Click here to read the leaked draft Chapter

“Given the controversial nature of many provisions in the draft TPP, there is a clear need for far greater transparency and consultation in the negotiations,” said Toby Mendel, Executive Director of CLD. “People deserve to know if their elected officials are pushing to implement plans that are harmful to the Internet and freedom of expression.”

The more serious problems in the leaked draft include the following:
• Australia, Brunei, Mexico, New Zealand, Peru, Singapore and the United States want to force third party intermediaries to put in place highly problematical anti-piracy measures, including schemes to terminate access to users found to be infringing copyright, or risk liability for acts undertaken by their users.
• Australia, Mexico, Peru, Singapore and the United States are supporting measures which, under the guise of protecting digital locks, will broadly criminalise even legitimate circumvention tools.
• Australia, Chile, Mexico, Peru, Singapore and the United States want to extend already excessive copyright terms for an additional twenty to fifty years.

Negotiating States aim to finalise the treaty at the next round of negotiations in Singapore, which start on 7 December. CLD calls on those States to open up the process to the public, to be forthright with their citizens about their negotiating positions and to ensure that the final text respects the right to freedom of expression.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
Email: michael@law-democracy.org
Tel: +1 902 448-5290
www.law-democracy.org
@law_democracy

The Centre for Law and Democracy (CLD) is concerned that a secrecy law about to be adopted by Japan’s parliament signally fails to respect international standards and, in particular, the standards set out in the Global Principles on National Security and the Right to Information (The Tshwane Principles), which CLD participated in drafting.

“We respect the right of Japan, and indeed every State, to protect genuinely sensitive national security information,” said CLD Executive Director, Toby Mendel. “But this law fails to define national security in a sufficiently clear and precise manner, and also grants too much power to officials to classify information as secret.”

It is a fundamental principle of international law that limitations on the right to access information held by public authorities must be set out clearly and narrowly in law. Principle 3(a) of the Tshwane Principles states: “Prescribed by law. The law [setting out restrictions on access] must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to understand what information may be withheld, what should be disclosed, and what actions concerning the information are subject to sanction.” Principle 3(c) elaborates: “Protection of a legitimate national security interest. The narrow categories of information that may be withheld on national security grounds should be set forth clearly in law.”

The draft secrecy law being considered by the Japanese parliament signally fails to meet this standard, instead providing a list of 23 vaguely worded categories of information which may be declared secret on national security grounds.

The law also allocates an undue measure of discretion to the heads of public authorities to classify information. Principle 4(d) of the Tshwane Principles clearly rules out such measures, providing: “In no case may the mere assertion, such as the issuing of a certificate by a minister or other official to the effect that disclosure would cause harm to national security, be deemed to be conclusive concerning the point for which it is made.”

The Centre for Law and Democracy urges lawmakers in Japan to reject the draft secrecy law in its current form and to make it clear that no law which fails to conform to international standards will be adopted.

The Tshwane Principles are available at: http://www.law-democracy.org/live/national-security-principles-launched/.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

A key element of the OGP process is that the country-level action plans should be developed in a broadly consultative manner with local stakeholders. The third common expectation of OGP Participating Countries, as spelled out in the June 2012 Articles of Governance, is that States should:

Develop country action plans through a multi-stakeholder process, with the active engagement of citizens and civil society

Addendum C of the Articles of Governance sets out in some detail the minimum conditions for appropriate consultation, essentially as follows:
• The consultation process and timeline should be set out in advance.
• There should be broad consultations with national stakeholders.
• A summary of the consultation process and submissions should be made available.
• Activities should be undertaken to raise public awareness.
• A variety of consultative mechanisms should be employed, including both online and in-person mechanisms.
• A forum for regular multi-stakeholder consultation should be employed.

The process of consultation with external (i.e. non-government) stakeholders around the first Canadian Action Plan – which consisted essentially of an open online consultation based on three questions for participants to answer, a Twitter Town Hall and one teleconference call with the members of the Advisory Panel on Open Government – has been criticised for failing to respect either OGP rules or minimum established standards for consultation. These Proposals by the Centre for Law and Democracy (CLD) and Publish What You Pay, Canada (PWYP-Canada), aim to help ensure a more robust consultation around the development of Canada’s second OGP Action Plan.

Guiding Principles
A number of principles should guide a robust consultation process. CLD and PWYP-Canada have identified the following key consultation principles:

Transparent
The consultation process should be transparent. This implies, among other things, that the government should make it clear, from the start, how the process will work, including the various steps that will be taken and their respective timelines. It also means that the process around submissions should be open, so that submissions should be posted online (this should be clear from the outset, so that everyone understands that their submissions will be made public). It also implies that the government should make proposed content publicly available, as soon as possible, for purposes of public comment on that content. This should be an iterative process, with content being updated regularly.

Inclusive
The consultative process should be designed so as to be as inclusive as possible, taking into account time and resource constraints. This means that there should be different ways of reaching out to different stakeholders, so as to promote the widest possible engagement. Ideally, stakeholders should be involved from the design stage, so that the process is structured from the beginning in a manner that promotes widespread engagement.

Genuine
The consultative process should be genuine in the sense that those engaging in it have a realistic expectation that their views will be taken into account. For this to be the case, the consultation must be real in the sense that the government does not approach it with a fixed, pre-set range of priorities. There must be a real possibility of the consultations impacting on the subject matter of the consultations. This also implies that sufficient context is made available to those participating in the consultation so that they may appropriately and realistically tailor their input to the specific policy process.

Concrete Proposals for Canada’s Second Action Plan

Process
There should be various elements to the consultation process. It is appropriate, indeed useful, to have an initial brainstorming element, but the process should include an opportunity for interested stakeholders to provide feedback on concrete proposals (i.e. a draft Action Plan). Ideally, this should be an iterative process in the sense that stakeholders have the opportunity to provide comments on an initial draft and then again on a more final version which reflects their original input. As a practical suggestion, more focused discussions on key issues could be considered as part of the iterative process (i.e. the scope of consultation could be narrowed as the process moves forward, so as to focus on key issues).

There should be a variety of mechanisms for giving input. Virtual tools – such as online opportunities to provide substantive feedback and discussions via social media, including Twitter – are important, but they are not sufficient. At a very minimum, there should be an ongoing dialogue with the Advisory Panel, allowing for ongoing, i.e. repetitive, input into the Action Plan as it is developed. The substance of Advisory Panel discussions should be posted online, allowing for interested stakeholders to submit responses and feedback, providing one means of ongoing input.

There should also be face-to-face discussions, as required by the OGP. In the Canadian context, this implies discussions in a number of different geographic locations across the country. To save time and effort, consideration could be given to attaching these to other ongoing events/consultations.

Transparency
The government should post proposals for the entire consultative process at an early stage, allowing interested stakeholders to comment on the proposed process.

Substantive content, for example in the form of revised versions of the Action Plan, should be posted online as frequently as possible, allowing for iterative feedback, at least online. All submissions from external stakeholders, however received, should be posted online. To enable this, it should be clear in advance that this will be the case. As noted above, at least summaries of Advisory Panel discussions should be made available online, allowing for others to be involved indirectly in this process.

The government should also provide an outline of its responses to external input, alongside revised versions of the Action Plan, so that stakeholders understand how their input has been taken into account. Where important input (e.g. as measured by the degree of repetition or extent of implications) has not been taken into account, reasons should be provided.

For further information, please contact:

Toby Mendel
Centre for Law and Democracy
www.law-democracy.org
e-mail: toby@law-democracy.org
tel: +1 902 412-0872

Intense campaigning by Irish and international civil society organisations has resulted in an important policy reversal by the Irish government. The Minister for Public Expenditure and Reform, Brendan Howlin, has withdrawn, for now at least, an amendment to the Freedom of Information Bill 2013 which threatened to charge multiple up-front fees for requests deemed to include more than one question.

Welcoming the withdrawal of the proposed amendment to expand the charging regime, Access Info Europe and the Centre for Law and Democracy today wrote to Minister Howlin urging him to go further and abolish the existing €15 per request, stating that this fee clearly violate international standards.

Click here to read the Letter

Drawing on the data captured in the Global RTI-Rating website, Access Info and CLD note that charging up-front fees is both a breach of international standards regarding the right to information and out of step with other countries. Ireland is the only country in Europe to have mandatory up front charges for all FOI requests (Malta permits such charges but these are not routinely applied). Globally, only 16 out of 95 countries (17%) charge up-front fees. The problem is exacerbated by the level of the Irish fee which, at €15, is higher than any other country.

In their letter, the two organisations note that up-front fees are not permitted by the Council of Europe Convention on Access to Official Documents, which has yet to be ratified or even signed by Ireland. Charges for requests place unacceptable obstacles in the way of access to information, which has been recognised as a fundamental right by the European Court of Human Rights and the UN Human Rights Committee.

The two organisations also called on Minister Howlin to do away with fees for search and retrieval of information. Arguments justifying the charging of costs other than photocopying and postage charges are flawed on three grounds. First, information held by public authorities belongs to the public, having been created with taxpayers’ money. Second, the cost of responding to requests is heavily correlated with the efficiency of public bodies’ record management systems; it is not appropriate to pass this on to members of the public exercising their right to know, which effectively rewards poor record management practices. Third, charging high fees exerts a significant chilling effect on making requests, and there are strong public interest arguments against this, due to the significant benefits which flow from transparency. There is also the importance in a democracy of the public knowing what its government is doing, something which it is impossible to put a price tag on.

The threat to increase fees has raised serious concerns about Ireland’s commitment to the ideals of the Open Government Partnership (OGP). Doing away with up-front and search and retrieval fees for information requests would be a welcome inclusion in Ireland’s national OGP Action Plan and a clear signal of the government’s commitment to increase transparency.

For further information, please contact:

Toby Mendel
Centre for Law and Democracy
www.law-democracy.org
e-mail: toby@law-democracy.org
tel: +1 902 412-0872

Over the past three years, delegates from 12 countries representing 800 million people and 40% of the global economy have been secretly negotiating a sweeping trade agreement known as the Trans-Pacific Partnership (TPP). Since their inception, the TPP negotiations have been widely criticised for their lack of transparency and failure to involve non-State players, including civil society. This criticism has been fuelled, in part, by suspicions that the treaty will pose a threat to freedom of expression by expanding copyright rules to the detriment of the public interest in protected works entering the public domain and being available for legitimate reuses, and by establishing harsh new measures aimed at combating copyright infringement.

On Wednesday, a leak of the draft chapter on Intellectual Property Rights released by Wikileaks appeared to confirm many of these fears. The Centre for Law and Democracy (CLD) intends to prepare a full Analysis of the leaked text shortly, but our preliminary examination finds several glaring problems. One provision commits States Parties to extend copyright protection terms for works authored by natural persons to either 70 or 100 years after the death of the author. 70 years would be a significant extension in New Zealand, Canada, Malaysia, Japan, Vietnam and Brunei, while 100 years would mean extensions in every State except Mexico. CLD believes that it is completely inappropriate to extend the term of protection and, indeed, that existing terms are already far too long given the changes that have taken place in the information space since the Berne Convention was originally agreed (see Reconceptualising Copyright: Adapting the Rules to Respect Freedom of Expression in the Digital Age).

Click here to read the leaked TPP Chapter

Another provision would undermine the immunity from liability that Internet Service Providers (ISPs) enjoy in better practice States when their customers are found to be violating copyright online. This principle of safe harbour is a cornerstone of the Internet, without which many companies would be unable to operate. However, a majority of the States negotiating the TPP favour making this immunity dependent on ISPs’ participation in a programme to terminate Internet service provision to repeat copyright violators. CLD believes that termination schemes represent a breach of the right to freedom of expression (see Analysis of the Korean Copyright Act). They are certainly extremely controversial and vastly unpopular in the States that have attempted to introduce them.

The draft treaty also imposes significant legal restrictions on the ability of users to circumvent digital locks placed by copyright holders – specifically by criminalising the development and distribution of devices that are capable of circumventing the locks – ostensibly to prevent copyright infringement. Anti-circumvention laws are controversial, largely because digital locks often fail to distinguish between illegitimate and legitimate uses, such as the creation of transformative derivative works. While the text contemplates certain exceptions to the restrictions on circumventing digital locks, it is likely that these measures would limit the ability of individuals to engage in legitimate uses of copyrighted works.

Although appropriate protection for intellectual property rights is important, among other things to foster a rich expressive landscape, the overzealous anti-piracy measures that many States have sought to put in place in recent years represent one of the greatest threats to freedom of expression. If accurate, the leaked document reveals that the TPP negotiations are the latest such attempt. It is, at the same time, notable that the draft TPP also reveals that there are many substantial points of disagreement among the participating States, and that most of the problematic provisions face resistance from certain quarters.

The Centre for Law and Democracy believes that it is inappropriate for an important document like the TPP, which will have a significant impact on the Internet and creative content production, to be negotiated behind closed doors. While we recognise that officials need some space to discuss and negotiate, we call on participating States to make drafts public on a regular basis, to be open about their core positions on critical issues and to create forums which allow for the views of other stakeholders to be heard. It is vitally important that the final document strike an appropriate balance between the freedom of expression interests of authors and those of the wider public.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

The success or failure of a right to information regime is heavily dependent on the public officials who are tasked with implementation, and whether they are informed about their transparency obligations. Yesterday, as part of a wider project to support implementation of the Indonesian Law on Public Information Openness, the Centre for Law and Democracy (CLD) and the Indonesian Center for Environmental Law (ICEL) carried out a training for public officials in the Indonesian province of Banten. The training was attended by information officers (PPIDs) from over 40 different public bodies from across the province, as well as representatives from the Banten and Jakarta Information Commissions.

“Given the centrality of information officers to proper implementation of Indonesia’s right to informtion law, we are pleased so many of them were able to attend the training.” said Toby Mendel, Executive Director of CLD. “We hope that this training and others for officials we have done under this project will improve implementation of the law.”

The training is one of a number of interventions being carried out under this project. The programme also includes supply-side interventions, grassroots awareness-raising activities and the production of resource materials.

“Over the past year, there have been 427 complaints regarding information disclosure in Banten,” said Dessy Eko Prayitno, Researcher with ICEL. “By building capacity among the PPIDs, we hope to lower this number, and to enable Banten to become a leader in implementation of the RTI law”.

More information on the programme, as well as versions of the training manual in both English and Bahasa Indonesia and other resources, are available at: http://www.law-democracy.org/live/projects/rti-in-indonesia/.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
info@law-democracy.org
+1 902 431-3688
www.law-democracy.org

Global right to information organisations Access Info Europe (AIE) and the Centre for Law and Democracy (CLD) today called on Open Government Partnership (OGP) Participating Countries to make serious commitments to strengthen their right to information laws in the next round of action plans, due to be presented in April 2014.

One of the biggest concerns at the London OGP summit is that governments are not making commitments which will move them beyond the current situation and that they are not being ambitious or “stretching” with planned reforms. This concern is particularly acute in relation to the right to information, one of the eligibility criteria for joining the OGP.

CLD and AIE will release a report shortly which highlights the fact that seven OGP members – namely Costa Rica, Ghana, Kenya, Malawi, Paraguay, Philippines, Spain and Tanzania – still do not have any law guaranteeing the right to information. Two of these are on the OGP Steering Committee, a position the Philippines has held since the beginning.
Another 13 have legal frameworks with scores in bottom of the global RTI Rating (www.rti-rating.org), i.e. scores of less than 75 points out of a possible total of 150.

“It is unacceptable for countries to sign up to a open government initiative which has transparency at its core and yet fail to put in place a proper legal framework to guarantee the right to information,” commented Toby Mendel, Executive Director of Centre for Law and Democracy. Mendel suggested that modern access laws should aim to score at least 100 points.

“With the RTI Rating we have identified precisely what countries need to do, we are calling for immediate commitments to strengthen access to information laws, bringing them up above the 100 points out of 150 level,” said Helen Darbishire, Executive Director of Access Info Europe.

For further information, please contact:

Toby Mendel
Centre for Law and Democracy
www.law-democracy.org
e-mail: toby@law-democracy.org
tel: +44 (0)7964 015083

The Government of Bhutan has posted a draft of the Right to Information Bill, 2013, for comment. The draft Bill sets out procedures and other rules to give practical effect to citizens’ right to access information held by public authorities, as guaranteed by Article 7(3) of the Constitution of the Kingdom of Bhutan. As part of a joint project with International Media Support, CLD has prepared Comments on the draft Bill based on the RTI Rating, a methodology for assessing the strength of legal frameworks for the right to information, developed by the Centre for Law and Democracy (CLD) and Access Info Europe. The RTI Bill measures up extremely well, garnering 125 points out of a possible total of 150. This score would place Bhutan in 5th place globally in terms of the legal framework for RTI, behind Serbia (135 points), India and Slovenia (each with 130 points) and Liberia (126 points). The Comments provide an assessment of the RTI Bill against international standards and better national practice, as reflected in the right to information laws of democracies around the world.

Click here to read the Comments

In the early hours of Monday morning, 7 October 2013, a group of masked men armed with machetes and iron bars stormed the offices of Raajje TV, an opposition-aligned television station in Male, torching the studio, and wounding and hospitalising a security guard. The television station had received written threats of an attack the previous day and had requested police protection, but had received no response.

This incident is the latest in a troubling deterioration in the security situation for the media and journalists in the Maldives. At least four journalists were attacked by police and protesters while covering demonstrations in July 2013. Several journalists were also attacked in February 2013, including Raajje TV’s head of news.

“Violence against journalists for their reporting is not an ordinary crime,” said CLD Executive Director Toby Mendel. “It is an attack on freedom of expression and hence on everyone and indeed democracy itself. It is very troubling that these journalists were unable to secure police protection, even after reporting a specific and credible threat.”

According to international human rights law, States are under an obligation to create an environment in which the media can do its job effectively. This includes, where necessary, providing protection for the physical security of journalists and media outlets. The Centre for Law and Democracy calls on the Maldivian authorities, and particularly the police, to enhance the protection that it offers to journalists with a view to preventing future violent incidents. The police should also fully investigate the assaults that have taken place with a view to prosecuting those responsible, among other things to avoid the emergence of a climate of impunity for attacks against the media.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

On 23 September 2013, the Centre for Law and Democracy (CLD) released a detailed Analysis of the weaknesses in Nova Scotia’s access to information framework which included a number of recommendations for reform. In response, the leaders of all three major parties expressed some willingness to consider CLD’s recommendations. To measure the true strength of the parties’ commitment to transparency, CLD called on them to make the following three specific commitments:

1. If elected Premier, I will expand the powers and mandate of the Review Officer, particularly through granting her order-making power.
2. If elected Premier, I will impose a binding timeline of 30 days, extendable once by a maximum of 30 days, for responding to access to information requests.
3. If elected Premier, in our dealings with government lawyers, my government will only claim solicitor-client privilege in cases where confidentiality is necessary to protect an impending court case or negotiation.

We are pleased to announce that both the Liberal and Progressive Conservative campaigns have unequivocally accepted all three recommendations and pledged to fulfil these promises if they win the election. The New Democratic Party, on the other hand, rejected all three, arguing, against all the evidence, that there was no need for these reforms.

Access to information is a human right, protected both under international law and in the Canadian Charter of Rights and Freedoms, and an indispensable tool in promoting accountable, participatory government. As a non-partisan human rights organisation, CLD takes no position on the outcome of the election. But we do call on all parties to promote the right of access, and to respect their commitments on this issue. For our part, we will be happy to work with the next government to improve openness in Nova Scotia.

Click here to read the response from the Progressive Conservative Campaign
Click here to read the response from the Liberal Campaign
Click here to read the response from the New Democratic Campaign

CLD has also prepared a response to the objections raised by the New Democratic Campaign to our reform proposals: Click here to read the Letter

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

The Green Climate Fund (GCF), an international financial institution (IFI) which uses lending to promote compliance with the UN Framework Convention on Climate Change (UNFCCC), has prepared a draft policy on information disclosure for consideration by the Board at its fifth meeting in Paris from 8-10 October 2013. The Global Transparency Initiative (GTI) has prepared a Note analysing the draft policy.

Click here to read the Note

“We very much welcome the fact that the GCF is moving forward quickly to put in place an interim policy on openness,” said CLD Executive Director, Toby Mendel. “However, the regime of exceptions to the right of access is far too broad, while the rules for processing requests are very weak and need to be strengthened.”

The focus of the current draft policy is very much on proactive disclosure of information, which takes up 26 of its 36 operative paragraphs. In contrast, only three paragraphs, containing three limited rules, are devoted to processing requests, and only one paragraph is devoted, respectively, to exceptions and appeals.

The key recommendations in the Note are:
• The regime of exceptions is too broad and too many exceptions are not harm-tested.
• The procedures for lodging and responding to requests should be substantially expanded to address important issues such as what needs to be included in a request, the time limits for responding to requests and providing assistance to requesters.
• The policy should make it clear that appeals will be decided by a panel which includes representatives who are independent of the GCF.

We recognise that this is just an interim policy, but we believe it would be unfortunate to set a negative precedent regarding exceptions and would take little effort to improve the section on procedures. We urge the Board of the GCF to adopt a draft policy which will serve as a strong basis for openness during the interim period.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 431-3688
www.law-democracy.org
Twitter: @law_democracy

For years, politicians across Canada have been promising transparent and accountable government, and failing to deliver. From Canada’s lukewarm participation in the Open Government Partnership to the many failed attempts at reforming the federal Access to Information Act, Canadians have become used to a familiar cycle, where candidates pledge bold improvements during the election campaign, only to backslide on these commitments after the election is over.

Here in Nova Scotia, there is ample evidence of a deficit in public accountability. The clearest manifestation of this problem came in 2010, when Auditor General Jacques Lapointe released a report that revealed widespread abuse of MLA expenses by members of all three major political parties. The revelations led to criminal charges being laid against four serving and former MLAs. Although steps have been taken to tighten spending rules, there is no indication that any progress has been made in tackling the underlying problems at the heart of the matter. The Management Commission, which was created in the aftermath of the scandal, may work to prevent fraudulent expenses claims going forward but it will not change the overall political climate under which so many MLAs felt comfortable abusing the system. This requires fostering a broader climate of accountability within government. A key step along that road is an effective right to information for Nova Scotians.

On 23 September 2013, Centre for Law and Democracy released an Analysis of the weaknesses in Nova Scotia’s right to information framework, and recommended root and branch reform of the province’s Freedom of Information and Protection of Privacy Act (FOIPOP), including 18 major changes to bring the FOIPOP more closely into line with international standards.

In response to the Analysis, the leaders of all three major parties expressed a willingness to consider the recommendations. Liberal Leader Stephen McNeil stated that he would review the FOIPOP with the aim of making Nova Scotia “the most open and transparent province in Canada.” New Democratic Party Leader Darrell Dexter claimed he would be “happy to consider” any “constructive suggestions” in the Analysis. Progressive Conservative Leader Jamie Baillie also expressed support for the Analysis’ recommendations.

While it is good to hear that all three candidates for Premier endorse the need for greater transparency in government, all three expressed their support in somewhat vague terms. Experience suggests that broad promises made during the course of a campaign are often forgotten once a party is in power. In order to ensure that the candidates will follow through on their commitments, we have boiled our recommendations down to three core ideas, which we call on all three candidates to include as part of their platforms:

1. If elected Premier, I will expand the powers and mandate of the Review Officer, particularly through granting her order-making power.

2. If elected Premier, I will impose a binding timeline of 30 days, extendable once by a maximum of 30 days, for responding to access to information requests.

3. If elected Premier, in our dealings with government lawyers, my government will only claim solicitor-client privilege in cases where confidentiality is necessary to protect an impending court case or negotiation.

None of these three ideas are particularly radical. For example, oversight bodies in Alberta, British Columbia, Manitoba, Ontario, Prince Edward Island and Quebec all have the power to issue legally binding orders. In India, a country which has thirty times Canada’s population, and where the public sector has far less access to advanced data management technology, the Right to Information Act, 2005 requires government officials to respond to requests within 30 days with no possibility of an extension.

By endorsing these three promises, Nova Scotia’s leadership candidates can show that they are serious about improving transparency in the province. The trust deficit between Nova Scotia’s voters and its elected officials has never been higher. It is time to put in a place a system with real accountability.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

Access Info Europe (Spain) and the Centre for Law and Democracy (Canada) are today launching a report providing an analysis of the results and trends in the global RTI Rating, which assesses the legal framework for the right to information (RTI) in every country in the world which has adopted a national RTI law. A major finding of the report is that as international standards have developed laws have got stronger. At the same time, there is still a lot of room for improvement, with only 23 countries scoring more than 100 points.

Click here to read the Report

“Our report shows that RTI laws have steadily improved over time, with the average score climbing from just 78 out of a possible total of 150 in 1995 to an average of 91 for the laws adopted since 2010,” said Toby Mendel, Executive Director of the Centre for Law and Democracy. “This is probably due partly to the fact that later laws can build on the experience of earlier laws, and partly to the fact that there are now stronger and clearer international standards on this key issue.”

One finding of the report is that some of the world’s weakest laws are in the older democracies of Europe. Austria is bottom with 37 points out of 150 points, Germany just scored 52 points and Italy 57 points. Spain has no law and its current draft has scored a very low 68 points.

Helen Darbishire, Executive Director of Access Info Europe, commented: “It’s clear that now that access to information is recognised as a fundamental right, we are getting stronger laws. We call on countries lower in the rating such as Austria, Germany and Italy urgently to improve their laws, and those in the process of adopting new laws, such as Spain, should aim for a high score.”

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

As Nova Scotians prepare to select their next government, transparency and a positive attitude toward the right to information should be a significant consideration in determining who is best suited to lead the province. Today, the Centre for Law and Democracy (CLD) released an Analysis pointing to major problems with Nova Scotia’s transparency framework, the Freedom of Information and Protection and Privacy Act (FOIPOP). The Analysis notes that the FOIPOP is significantly weaker than transparency legislation found in many developing countries, including India, South Africa and Mexico, and proposes concrete legislative solutions to bring the framework up to code.

Click here to read the Analysis

“The reforms we are proposing may seem extensive, but they are the bare minimum required to bring the FOIPOP into line with international standards,” said CLD Executive Director Toby Mendel. “Nova Scotia was once in the vanguard on this issue, adopting the first law in Canada, but it has now fallen sadly behind while international standards have moved steadily forwards.”

The major proposed reforms include:
• The Review Officer should have the power to make binding orders, and an expanded mandate including investigative powers.
• Timeline extensions for response should be capped at 30 days.
• Unnecessary and overly broad exceptions should be removed or revised.
• The rules on release of information in the public interest should be strengthened.

The evidence that the access to information law is weak is strong. From expense scandals to obfuscation around the provincial government’s business dealings, there is a clear need to enhance openness in government. CLD has long been an advocate for root-and-branch reform of access to information legislation across Canada. In the context of the upcoming provincial election, CLD urges the competing parties to include commitments in their platforms to improve Nova Scotia’s right to information law.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

The Open Government Partnership (OGP) is a global initiative to promote greater transparency, participation and accountability in government founded by Presidents Obama of the United States and Rousseff of Brazil. Member countries must meet minimum openness standards and pledge to make further commitments to openness. Having presented its first Action Plan in April 2012, setting out the key actions it will undertake to promote open government, Canada’s government is now preparing an implementation report on the Action Plan for formal review by the OGP. The Centre for Law and Democracy has submitted a Progress Report as part of this process.

Click here to read the Assessment

“We very much welcome Canada’s active participation in the OGP and the fact that it has largely delivered on its Action Plan commitments,” said CLD Executive Director, Toby Mendel. “However, the process of consultation around the development and implementation of the Action Plan was weak, and the specific commitments can only be described as modest.”

OGP Members pledge to consult widely with local stakeholders to develop action plans which set out the specific actions they propose to undertake. The process of consultation on Canada’s Action Plan was limited, involving an online commenting process, a Twitter town hall and one meeting of the Advisory Panel, a multi-stakeholder body set up by the government. At no point in the consultations did the government publish a draft Plan for comment.

In terms of substance, the Action Plan contains 12 specific commitments, and the government has largely moved forward to implement them in line with the timetable it set for itself. However, the commitments are modest, with a strong focus on technology and posting more information online, and relatively relaxed time lines for implementation. Importantly, the Plan fails to make a commitment to reform the Access to Information Act, despite the fact almost all informed observers agree this is a key priority.

CLD calls on the government to undertake robust consultations as it develops its implementation report to the OGP and again when it develops its second action plan, due in March 2014. We also call on the government to ensure that the second action plan is far more ambitious than the current one.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

The International Federation of Journalists (IFJ) and the Centre for Law and Democracy (CLD) today launched the Handbook on International Standards and Media Law in the Arab World.

The Handbook sets out international standards regarding media freedom and assesses the extent to which the legal regimes governing the media in Arab countries conform to those standards. It is designed to support journalists and others in the Arab world in their struggle for press freedom and media law reform in the region.

Click here for the Handbook in English
Click here for the Handbook in Arabic

The Handbook offers a unique overview of the laws and regulations governing the media in countries in the Arab world and spells out potential solutions to the challenges facing Arab journalists based on international standards. As the first detailed assessment of media laws across the region, the Handbook should prove to be a vital tool for journalists and others in their fight to bring about key media law reforms in the region, and thereby to confront threats from poverty, corruption and political interference.

“Arab journalists and their unions are confronting huge challenges arising from warring political factions, social conflicts and pressure for change,” said IFJ President Jim Boumelha. “Equipping them with a blue print for root-and-branch reforms of media laws and regulations is crucial in helping them build a new culture of journalism which would bring to an end offensive laws that continue to control information.”

The Handbook covers key media law issues, including media diversity, the need for bodies which regulate the media to be independent of political and commercial interference, regulatory standards in different media sectors – including journalists, the print and broadcast media and public broadcasting – the right to information, and criminal and civil restrictions on what may be published or broadcast.

“An assessment like this of the media law regimes across the Arab world is long overdue,” said Toby Mendel, Executive Director, Centre for Law and Democracy. “The Arab Spring has opened up new possibilities for democratic change, and we hope the Handbook will assist those advocating for reform in the region.”

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

In recent years, freedom of expression in Russia has come under severe attack. A number of pieces of legislation have been adopted limiting the ability of opposition voices to make themselves heard. An Analysis released today by CLD demonstrates that, even against this troubling backdrop, the recent decision by Russia’s government to create an Internet blacklist is a particularly ominous development.

Click here to read the Analysis

“Although the Internet is famously resistant to censorship or control, Russia’s content regulation framework has tremendous potential to clamp down on online speech” said Toby Mendel, Executive Director of CLD. “We are particularly concerned about moves to ban speech that ‘propagandises non-traditional sexual relations’ which is clearly targeting the LGBT community.”

Key problems with Russia’s blacklist are that it imposes overly broad and illegitimate bans on content and that it lacks appropriate safeguards against political abuse. This problem is exacerbated by a lack of transparency in the way the system operates and insufficient procedural protections for those whose material is targeted for takedown.

In the period since the law has come into force, there is already ample evidence of its overbreadth, with several innocuous websites having been put on the blacklist. CLD calls upon the Russian government to review its whole approach to controlling Internet content, with a view to bringing the system into line with international standards regarding the right to freedom of expression.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy