Disclosure Rules in the EAP Region: A Critical Halfway to Freedom of Information World Bank Regional Governance Hub East Asia and Pacific

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1 Disclosure Rules in the EAP Region: A Critical Halfway to Freedom of Information World Bank Regional Governance Hub East Asia and Pacific While a lot of attention is currently given in the EAP region to the adoption of Laws on Freedom of Information 1 (FOI Laws), relatively less attention is paid to Disclosure Rules 2 (DRs) in countries that do not still have a FOI Law in power. The relevance of DRs in enhancing transparency should not be underestimated. Countries such as Mongolia 3, Papua New Guinea and Philippines do not yet have a FOI Law, but perform better in the Open Budget Index (OBI) 4 than some countries with a FOI Law in power such as China and Thailand (see Figure 1). Similarly, several EAP countries without a FOI Law namely Singapore, Malaysia, Philippines and Vietnam- perform either better or similarly in the Online Service Index (OSI) 5 than the majority of FOI-law countries in the region (see Figure 2). Positive Features of Disclosure Rules Examining the DRs of two different countries such as Vietnam and Mongolia 6 can provide valuable information about the strengths and weaknesses of DRs and help reconsider freedom of information reform efforts. A first message that can be extracted from the review of the public sector DRs of these countries is that DRs do actually add value to various components of a freedom of information system and even contain some very positive features (see Table 1). Table 1. Public Sector Disclosure Rules of two Countries without a FOI Law FOI COMPONENTS VIETNAM MONGOLIA Constitutional Protection Yes Yes Minimum Information Required to be Disclosed Yes, very broad coverage, although spread in many different regulations Yes. It includes legal documents, budgets, procurement, human resources & activities of public agencies 1 By Laws on Freedom of Information (FOI Laws) we refer to Laws, Bills or Acts passed by the legislative body that promote transparency and access to information and include appeal possibilities. 2 By Disclosure Rules (DRs) we refer to legal regulations different than FOI Laws that at least promote disclosure. DRs may also promote the broader access to information agenda. 3 Mongolia's Parliament passed a freedom of information law in June The law will come into effect on December 1, The Open Budget Index (OBI) is based on the Open Budget Survey conducted by the International Budget Partnership. The OBI measures the publication and level of information of eight key state budget documents: (i) pre-budget statement; (ii) executive s budget proposal; (iii) enacted budget; (iv) citizens budget; (v) in-year reports; (vi) mid-year review; (vii) year-end report; and (viii) audit report. The assessment is conducted by research institutes and civil society organizations in the examined countries. 5 The Online Service Index (OSI) is based on the E-Government Survey of the United Nations. The OSI mesures the scope and quality of government online services based on an assessment of government websites conducted by a research team. The OSI has four components: (i) emerging information services; (ii) enhanced information services; (iii) transaction services; and (iv) connected approach. 6 Vietnam and Mongolia are different politically and geographically. The former is a single-party state located in Southeast Asia. The latter is a multi-party democracy located next to the Central Asia region. 1

2 Requests for Information under Response Deadline Clearly Defined Regime of Exceptions Explicit Presumption in Favor of Disclosure Individual Responsibilities for the Implementation Sanctions for Non-Compliance Right to Appeal Information Refusals Monitoring and Enforcement Body Yes Yes No No legal provisions on FOI contact points, but heads of agencies are responsible for organizing the implementation Yes, sanctions are envisaged but not clearly specified Yes, but the appeals system is not fully independent and specialized Multiple and not specialized bodies. Heads of agencies bear responsibility for violations. No legal provisions Yes, but exceptions are too broad No No legal provisions on FOI contact points Yes, but only for failure to disclose 4 information categories No legal provisions No legal provisions on the FOI body, but the transparency of 4 information categories must be monitored by the Independent Anti-Corruption Authority Source: Based on the 2010 Freedom of Information questionnaires of the Public Accountability Mechanisms Initiative of the World Bank; Vietnam Development Report 2010 Modern Institutions; Legal Study on Mongolia s Legislation concerning Information Openness, Globe International, 2007; Resolution No. 143 of the Government of Mongolia dated 14 May 2009 on the Approval of Transparency Indicators. Proactive disclosure Vietnam s DRs include a very comprehensive list of information required to be proactively disclosed, covering all levels of government, as well as wide ranging cross-cutting and sector-specific public information. The forms of disclosure are typically specified in the DRs and they include a diverse set of forms so as to ensure broad and inclusive outreach. Government websites constitute a very common form of proactive disclosure in Vietnam. Not surprisingly, the country ranks relatively well in the 2010 OSI 7. At local levels, other forms of disclosure are used. A 2009 survey of a small sample of 500 citizens in four provinces of Vietnam 8 found that the main channels which are effectively and frequently used to provide information to citizens by local authorities are loud speakers, heads of hamlets or citizens groups, and posting in the offices of the grassroots level governments. Each of these methods is used to disseminate a different type of information. Generally, the interviewed citizens assessed positively the information channels, especially the first two ones. Vietnam s DRs require the disclosure not only of approved public documents but also the disclosure of some key draft public documents, thereby encouraging the ex-ante engagement of society in public affairs. For example, the Law on Laws requires the on-line disclosure of almost all national-level draft legal documents during at least 60 days for collection of public comments, and the Ordinance on 7 Vietnam ranks 79 out of 189 countries. The OSI for Vietnam is , which is well above the average for least developed countries (0.1121) and slightly above the average for developing countries other than least developed countries (0.2823). 8 Some Initial Findings from the Survey of Citizen s Information Accessibility Situation and Needs as Conducted by PPWG Members. DEPOCEN, 20 August

3 ONLINE SERVICE INDEX (0=Worse Services; 1 = Better Services) OPEN BUDGET INDEX (0 = Less Information; 100 = More Information) Grassroots Democracy requires the disclosure and consultation by grassroots level governments of various draft plans, schemes and projects. Figure 1. FOI Laws and de facto Budget Transparency in EAP Countries No FOI Law High Budget Transp. FOI Law High Budget Transp S. Korea Timor-Leste Mongolia PNG Philippines Malaysia Indonesia Thailand No FOI Law Low Budget Transp. Cambodia Vietnam Fiji I China FOI Law Low Budget Transp. FOI Law ( 1= No Law Sign; 2 = Close to Law; 3= Law in Power) Source: Own estimates based on 2010 OBI; Roger Vleugles, Overview of all FOIAs, September Figure 2. FOI Laws and de facto Online Government Services in EAP Countries No FOI Law Strong Online Gov. S. Korea FOI Law Strong Online Gov Singapore Malaysia Mongolia Japan No FOI Law Weak Online Gov. SamoaTimor-Leste Laos Myanmar Palau Tonga Kiribati Marshall I. Philippines Vietnam Fiji I. Cambodia PNG Salomon I. Vanuatu China Thailand Indonesia FOI LAW (1= No Law Sign; 2= Close to Law; 3= Law in Power) FOI Law Weak Online Gov. 3

4 Source: Own estimates based on 2010 UN E-Government Survey; Roger Vleugles, Overview of all FOIAs, September One specific area to which Vietnam s Ordinance of Grassroots Democracy applies is infrastructure projects at grassroots level under the national poverty reduction program 135. Available data on transparency and consultation of these infrastructure projects show positive results. In the communes of four provinces under program 135, on average 73% of households were aware of infrastructure works and 36% of the aware households participated in the selection of the work site. For some specific types of infrastructure works such as electricity, transport and irrigation, the percentage of participating households was significantly above the average. 9 Mongolia s DRs contain a limited number of information categories to be disclosed, but the depth of required disclosure is quite high for some specific categories such as state budgets. Indeed, Mongolia discloses significant or extensive information on pre-budget statements, budget proposals, enacted budget and in-year budget reports. It also discloses some information on year-end budget reports and audit reports. Mongolia s score in the 2010 OBI is well above the worldwide average and among the highest in the East Asia Pacific and Central Asia regions. Mongolia s DRs also excel in terms of requiring the use of government websites as a form of disclosure. This has been strongly promoted in 2009 by the Government Resolution No. 143 entitled Approval of Transparency Indicators. As a result, the country is among the top 20 performers worldwide in the 2010 OSI. The OSI of Mongolia is even above the average OSI for developed countries. Right to request information Vietnam s DRs have other key positive features different than the promotion of proactive disclosure. A remarkable one is that organizations and citizens are explicitly allowed to submit requests for information to all government agencies, to receive a reply within 10 days, and to complain about the non-supply of information or the non-performance of the obligation to supply information. The previously mentioned survey of 500 Vietnamese citizens 10 found generally satisfactory results with regard to requests for information submitted to grassroots level governments. The vast majority of the interviewees (70%) mentioned that it takes less than one week for them to receive their demanded information, and about a fifth of the interviewees said that the information is received within two weeks. Importantly, almost all interviewees found satisfactory the information quality and the reply methods of the grassroots level governments. The supplied information was reported to be sufficient, although of limited quality. Only a minority of the interviewees (9%) requested the information to other authorities different than the grassroots level governments, and about three out of four of them received the information that they needed. Limitations of Disclosure Rules 9 Report on Results of Citizen s Report Card Survey on People s Satisfaction with P135-II. Quyen et al, Some Initial Findings from the Survey of Citizen s Information Accessibility Situation and Needs as Conducted by PPWG Members. DEPOCEN, 20 August

5 A second message that can be extracted from Vietnam and Mongolia is that DRs are likely to get citizens only halfway to freedom of information. The DRs of both countries do not explicitly recognize that disclosure is the rule rather than the exception. Importantly, their DRs have some key deficiencies that affect the implementation of disclosure and limit the right to access information (see Table 1). Fragmented legal framework One basic limitation of DRs is the fragmentation of the regulations. In Vietnam, for example, there are as many as 30 separate legal documents on disclosure that are applicable to all sectors of government, and this is without counting the various sector-specific regulations. This makes it very difficult and timeconsuming for public officials to know their disclosure obligations, and ultimately it undermines the implementation of the disclosure provisions. In Mongolia, the situation is better since two years ago, as Government Resolution No. 143 contains in a single document the specific types of information that all public agencies must disclose. No responsibility for disclosure A second deficiency that can be observed in the DRs of Vietnam and Mongolia is the non-existent or weak assignment of individual responsibilities for the implementation of disclosure and requests for information. None of the two countries have legal provisions assigning FOI contact points in government agencies. Vietnam s DRs just stipulate that the heads of agencies are responsible to organize and direct the supply of information without going into the specifics of who within each agency will do the FOI work. Weak monitoring and enforcement Last but not least, Vietnam s and Mongolia s DRs could benefit from a stronger system to monitor and enforce the implementation of disclosure and more generally freedom of information. Vietnam s DRs generally assign institutional responsibilities for monitoring the implementation of transparency but it is only an implicit mandate. Importantly, there are multiple responsible bodies and none of them is specialized on access to information issues. Vietnam s oversight system is further weakened by the fact that the existing appeals system is not fully independent and specialized, and that the sanctions for the failure to respond to information requests are not clearly specified. Mongolia s Independent Anti- Corruption Authority (IAA) is responsible to monitor the transparency of the four information categories specified in Government Resolution No. 143, and the Resolution stipulates that the sanctions specified in the Law on Public Service apply in cases of violation of the Resolution. However, Mongolia does not have any relevant legal provisions on FOI-specific oversight body and appeals for information refusals. How secrecy laws affect disclosure Another major reason why DRs can leave citizens halfway in their quest for information freedom is secrecy laws. The examples of Vietnam and Mongolia show that secrecy laws and their guidelines intersect with DRs and affect their implementation in different ways. Overbroad secrets In Mongolia, the scope for disclosure is significantly constrained by the fact that the Law on State Secrets and the Law on the List of State Secrets stipulate a range of excessively broad secrecy provisions, 5

6 very long classification periods, a high number of items protected for indefinite period and a lack of clarity on how information produced before 1995 should be disclosed. Almost anything can be classified as state secret. Being so broad, the secrecy provisions can be abused. This has been the case of the secrecy provisions on national security, which have been historically subject to wide-ranging abuse by authorities in cases when there was no real risk of harm to national security or when the harm was lower than the public interest of having the information. 11 Undue secrecy Undue secrecy is another key factor limiting disclosure both in Mongolia and Vietnam. In Mongolia, there is a series of information items that are publicly available in most democratic countries but that are classified as secrets under the Law on State Secrets e.g. amount of state reserves, number of annual military recruits. In Vietnam, undue secrecy is particularly obvious in the banking sector. The implementing guidelines of the Ordinance of State Secrets applicable to the banking sector stipulate a series of restrictions which has left the State Bank of Vietnam (SBV) far behind international standards and practices in East Asia regarding disclosure of financial sector statistics. Information items such as foreign exchange reserves, analytical accounts of the central bank and core financial soundness indicators are currently being disclosed in many East Asian countries but not in Vietnam 12. Secrecy culture The implementation of existing DRs is seriously affected by a culture of secrecy. In Vietnam, the first Ordinance on State Secrets was adopted in 1991, whereas the first legal document comprehensively regulating transparency, the Law on Anti-Corruption, was adopted 14 years later. This has contributed to a culture of secrecy and a weak sense of responsibility for FOI tasks. A 2009 survey conducted by the Ministry of Justice and the National Hanoi University in four provinces found that almost all public officials do not consider the provision of information to citizens their responsibility, that they are usually puzzled when they are requested information, and that they tend to be familiar with the working context of secrecy. Another more recent study specific to the land sector found similar results 13. Disclosure-averse behavior The implementation of DRs is also affected by the existence of harsh penalties for disclosing state secrets, which create an overly risk-averse behavior towards information disclosure. Vietnam s Ordinance on State Secrets envisages penal liability and other sanctions for disclosing state secrets. The Criminal Law of Mongolia provides for 8 years of imprisonment for disclosing secrets. This can be inconsistent with the Johannesburg Principles, which provides that no one should be punished for disclosure of information under certain basic circumstances. 11 Based on Mongolia in Transition - An Analysis of Mongolian Laws Affecting Freedom of Expression and Information, Article 19 and Globe International, The secrecy laws of Mongolia have been amended several times since Last amendment was in But the above-mentioned source is still relevant. 12 The SBV is currently in the process of drafting a circular regulating information disclosure and provision to maximize transparency within the existing restrictions. 13 In a number of locations, districts and commune public officials do not seem to be accustomed to the fact that individual citizens can ask them for information. They often request some sort of introduction letter or explanation regarding the purpose of information seeking, despite the fact that the information is supposed to be disclosed. DEPOCEN for the World Bank, 2010, Survey Report on Information Disclosure of Land Management Regulations. 6

7 Risk-averse behavior in disclosing information is motivated as well by uncertain content restrictions. In Mongolia and Vietnam this affects the information provided by the media and publishing agencies. In Mongolia, the uncertainty created by multiple and unnecessarily vague legal provisions on obscenity, violence, cruel religious idea, insulting public officials etc. has led to self-censorship and excessive caution in broadcasts and publications. In Vietnam, although the media is legally allowed to report on corruption, the grey areas regarding the specific information that is prohibited to be reported discourages journalists to report on corruption to some extent. Lessons for East Asia Pacific countries How can this review be useful for government officials, members of parliament, donors, NGOs and other activists in the EAP region trying to advance the freedom of information agenda? First of all, it should make us reconsider the importance we attach to promoting DRs. At present, there are many countries in the EAP region without a FOI Law and it typically takes several years from the moment the lobby for the Law starts until the Law is approved and comes into power. Does it make sense to keep waiting until the FOI Law takes effect to see progress in citizens freedom of information? Figures 1-2 and the examples of Vietnam and Mongolia have shown us that significant though partial progress can be achieved outside the framework of a FOI Law. This makes the case for a gradual FOI reform agenda by which in the short and medium-term reform efforts pay due attention to maximize the potential of DRs, without abandoning the longer-term goal of developing and enacting a feasible FOI Law that addresses the fundamental gaps of DRs. Having proactive DRs may in turn help create a more conducive environment for the development of a FOI Law. In the case of Mongolia, Mongolia's Parliament passed a freedom of information law in June 2011 and the law will come into effect on December 1, Some positive endeavors on the part of Mongolia government and parliament to promote freedom of information include but not limited to the following examples: in 2009 the Mongolian Parliament passed a Resolution No. 38 on Directions for enhancing legal regulations of Mongolia until 2012 in which there is a provision (paragraph 160) to enhance the law on state secrecy and annul the law on organizational secrecy. A year earlier in 2008 the Intelligence office s working group drafted a renewed Law on state secrecy which included suggestions for provisions to significantly reduce overbroad secrets. The working group is still working on the draft law improvements. In 2008 the Mongolian government included into its Policy and action plan for a provision (5.7.1) to enhance the legal environment for provision of Freedom of information. Vietnam is currently in the process of developing a FOI Law. Vietnam has produced a first good draft. The step-by-step move towards freedom of information through the DRs has certainly helped familiarize the Government with transparency and build confidence for bigger moves on access to information. In addition, the attempt to implement the DRs has probably helped realized in these two countries that additional major legal changes are necessary to achieve more satisfactory results. Importantly, the examples of Vietnam and Mongolia teach us that reform actions on DRs and FOI Laws are necessary but not sufficient. The amendment of several aspects of old secrecy laws and their guidelines is necessary in Vietnam, Mongolia and probably in other EAP countries for society to enjoy a true freedom of information regime. Making the list of exceptions narrower and clearer could have a large impact in the de facto information freedom. 7

8 Finally, there are some lessons for those countries which already have a FOI Law in power, too. Figures 1-2 show that having a FOI Law in power is no guarantee for better results in certain aspects of transparency. Perhaps countries like Thailand, China and Indonesia should assess whether the fact of having already a FOI Law has made government and activists more relaxed about achieving transparency in specific areas; whether more efforts need to be put in better implementing the FOI Law; or whether the FOI Law needs to be complemented by other transparency initiatives. 8