Former South African President Nelson Mandela made South Africa an RTI Regime to prevent another apartheid state.
President Barack Obama stated the following in issuing a memorandum on the Freedom of Information Act on his first day in Office in 2009. “The presumption of disclosure also means agencies should take affirmative steps to make information public. All agencies should use modern technology to inform citizens about what is known and done by their government. Disclosure should be timely.”
The above preamble covers the parameters of a Right to Information (RTI) regime. Having an RTI regime is evidence of democracy deepening in a country. The RTI regime can play a multifaceted role in moving a country forward by strengthening accountability and transparency in all aspects of governance. This article focuses on the considerable scope that exists for using the RTI regime as a catalyst for achieving development goals.
The RTI is considered an important element of the freedom of expression. The availability of adequate information enables a person to form an informed opinion. Public policies and procedures are connected to people’s life from the moment of registering the birth to obtaining the death certificate. The RTI regime can bridge the gap between public policies and civil society engagement. Even though democracy is not a panacea for poverty alleviation and human development, it creates a conducive environment for achieving those goals. It is accepted that democracy creates opportunities and enhances capabilities of the poor and underprivileged. The RTI as a key element of democracy can therefore be used to harness development.
Sweden is the first country to enact an RTI law in 1766 and subsequently so far 119 countries have enacted this law promoting participatory democracy. Sri Lanka’s Right to Information Act No. 12 of 2018 was ranked 3rd in the Global Right to Information Rating. Studies have suggested that implementation and enforcement could be further strengthened in order to use the RTI regime for advancing the development agenda of the country. Strengthening collaboration between civil society and public authorities and having a robust technological framework in place would improve the effectiveness of the RTI regime.
Transparency is the key to ensure accountability
According to Jeremy Bentham (1748 – 1832), secrecy is an instrument of conspiracy. When more information on the functions of government authorities are available to the public, the level of transparency of relevant processes and procedures will also be enhanced thereby improving the checks and balances on Government actions. Bentham has further argued that the more closely the public officials are watched the better they behave. The RTI is applicable not only to government authorities, it also has a reach over corporate entities linked to government bodies as well. The requirement to disclose information compels the authorities to ensure a greater compliance culture in their decision-making processes. The people, who pay taxes for public services and elect the governments in a representative democracy where sovereignty rests with the people, have a right to know how the government functions.
When the financial information of public authorities are disclosed, the general public can ascertain not only whether there have been misappropriations but also whether their tax money has been prudently deployed. Stopping the misuse of public funds is a “must” to boost development. A study conducted by the IMF & OECD shows that international investment flows are higher and are of a better quality in countries with more transparent policy environments. According to Nobel Laurate Amartya Sen (1999), transparency guarantees can be an important category of instrumental freedom. These guarantees have a clear instrumental role in preventing corruption, financial irresponsibility and underhand dealings.
Lord Steyn (2000) mentioned in a case that RTI acts as a break on the abuse of power by public officials. The RTI regime can therefore play a critical role in improving the transparency of public functions and to enhance integrity in governance which in turn boosts the investors’ confidence.
It is also accepted that the participation of people in government decisions helps to transform governance into good governance. Even in ancient times, the political philosopher Jean-Jacques Rousseau (1712 – 1778) has proposed that public officials should operate “in the eyes” of the public in order to improve transparency. The RTI regime can also ensure that information on public policies is available to all the citizens and is not limited to special groups. This will discourage the intervention of lobbying groups into economic policy decisions. Transparency, accountability and responsiveness are considered main elements of good governance. Scholars assert that when people’s interests, needs and human rights are at the centre of governance, institutions and practices, there can be real progress in combating poverty. Good governance provides the platform for equitable distribution of benefits from growth. By promoting all three of these pillars of good governance, the RTI regime plays a fundamental role in promoting accelerated development.
Corruption is an enemy of development
When public authorities are required to be answerable for their actions, performances and use of public resources, the room for corruption would be reduced. According to the latest report of Transparency International, Sri Lanka was ranked 88th in the Corruption Index. Corruption is an enemy of development as it is an implicit tax on economic activity. The RTI regime will help to expose corrupt officials and deter others. Article 13 of the UN Convention against Corruption (UNCAC) requires that States should ensure that the public has effective access to information. In Thailand, a single mother was able to reveal that her daughter was denied a place in a best public school as she was poor and could not pay the bribes. In India, the misuse of funds allocated for a canal project for clean water was revealed from the documents obtained under RTI Laws. The rationale behind the said requirement is to enhance the transparency of functions of public authorities and officials. Proactive disclosure of information under RTI reduces the scope for taking bribes to release information.
Achieving policy predictability
When the decision-making processes of public authorities are open and transparent, achieving policy stability becomes easier. UNCTAD (2017) states that in the light of the critical role of investment as a source of economic growth and job creation, it is important that countries maintain a rule-based, predictable, inclusive and non-discriminatory environment for investment. Lack of policy coherence and predictability has been identified as a hindrance for gaining investor confidence in Sri Lanka. This lack of consistency is often due to the lobbying of special interest groups who are able to distort policies as a result of opaque processes. In the absence of a reliable and consistent policy-making mechanism, developing a long-term vision for the public sector would be difficult. The RTI regime should be used not only to make policy-making more transparent but also to encourage monitoring, evaluating and undertaking frequent reporting on the progress made in implementing government policies.
When governments fail to reduce uncertainty in the economic, social and political environment, people’s trust in them erodes. According to an OECD study, the lack of trust compromises the willingness of citizens and business to respond to public policies and contribute to sustainable economic development. The access to information also has a bearing on improved participation of civil society in sustainable development activities. The RTI has been a key element of the agenda to promote sustainable development since the 1992 RIO Declaration.
Achieving sustainable development is difficult without transparent and accountable institutions. The RTI regime can therefore be used to promote transparent legal and regulatory frameworks which are necessary for attracting foreign investment and to enable Sri Lanka to benefit from globalisation. Easy access to information enhances public awareness of the context in which decisions are made by public authorities. It will also be helpful in winning public support towards the government’s development projects. Importantly, the studies on the environmental impact of development projects need to be made available to the general public.
In a democracy direct participation of the people is encouraged. However, this participation would not be fruitful if the citizens are not aware of the issues in respect of which they are supposed to give their opinions.
Reactive disclosure Vs. Proactive disclosure
Sections 8 and 9 of the Sri Lankan RTI Act require information to be disclosed proactively. According to available studies on Sri Lanka’s RTI regime, 89% of public authorities have are within the moderately unsatisfactory band of overall composite baseline scores (comprising content and usability). It demonstrates that public authorities need to make greater efforts to improve their proactive disclosure mechanisms. By analysing the most sought-after information, public authorities can improve the quality of information made available under the proactive disclosure arrangement.
The European Convention on Access to Official Documents (2009) also recognises proactive disclosure as a measure to encourage informed participation by the public in matters of government. Proactivity on the part of the authorities fosters trust which will have positive externalities across the whole development agenda. In Vietnam, a more transparent environment to make corporate information available to potential investors has been established under the Law on Enterprises. To make Sri Lanka an attractive investment destination, the RTI regime can be used to compel the authorities to improve the openness of rules and regulations. This information is an important input for investment decisions of both local and foreign enterprises.
When the authorities disclose the laws applicable to their functions, awareness of the general public regarding relevant laws increases. Through this procedure, the “rule of law” mechanism is supported as well. The 2012 United Nations Meeting of the General Assembly on the Rule of Law declared that its advancement at the national and international levels is essential for sustained and inclusive economic growth, sustainable development and the eradication of poverty.
Proactive disclosure of information enables civil society, research institutions and other relevant parties to add value to information. Better utilisation of evidence/information in policy-making helps policy-makers and providers of services to achieve better outcomes related to development goals. The RTI regime can also foster a culture of policy innovation through the proactive disclosure mechanism. When the authorities pay more attention to upgrade information dissemination methods, disclosure procedures and approval granting systems, the “doing business” environment also becomes more conducive. If the public authorities ensure efficient process for proactive disclosure, information asymmetry will be minimised and a level playing field for access to information will be created. This reduces the scope for rent-seeking behaviour and distortion of policies by special interest groups.
Promoting digital economy
The RTI regime will also enable the country to embrace the digital economy. The concept of “e-governance” can play a vital role in developing a digital economy. The digital economy can minimise inequality by connecting the unconnected segment of the population to economic activities. Public authorities need to invest in ICT-based solutions to make information easily available to the general public to promote inclusive growth. In Estonia, even the Cabinet Meetings are run online and approvals are known to the public soon after the meetings. However, until the whole population gets access to internet facilities, other modes of communication should not be discontinued.
The concept of a “one stop shop” for all the required approvals for investors can be taken as an example of a mechanism for economic development established through the RTI regime. Easing administrative hurdles by public authorities is a real game-changer for the developmental agenda of a country.
According to research conducted by Harvard University, while technologies advance rapidly, organisations and skills advance slowly, and the gap between swiftly evolving technology and the slower pace of human development will grow quickly. Public authorities should therefore be more innovative to better respond to the highly competitive digitalised economic environment. The RTI regime can be used as an enforcer to make digitisation “business as usual” for the public authorities. The requirement to provide ‘proactive disclosure’ can be enforced by compelling public authorities to transform their infrastructure to meet the service expectations of digitally empowered customers. Embracing new technology by public authorities will compress transaction costs thereby enabling SMEs to participate in global trade at reduced costs. The RTI regime therefore can contribute to enhance the competitiveness of local enterprises. This is a very vital requirement for a successful export-led economic strategy.
Discouraging misuse of administrative discretion
The Australian Law Reform Commission and Administrative Review Council have found that the RTI regime has focused decision-makers’ minds on the need to base decisions on relevant factors and to record the decision-making process. When the decision-making processes of public authorities are documented in a proper manner, deviating from established principles becomes more difficult. Therefore, the RTI regime also serves to improve better information management by public authorities. This will help strengthen the process of institutionalising policies.
Internal operational manuals and guidelines can also be highlighted as important elements of this process. Rules and regulations rather than unchecked discretion should be the basis of decision-making. Strong institutions are the drivers of the development program of a country. When the proactive disclosure of information is automated, manipulation of information will be discouraged. Proper policy documents will reduce room for misuse of administrative discretion.
Challenges for efficient implementation of the RTI
In addition to economic development, access to information enables citizens to better secure their democratic rights. The RTI can act as a fundamental part of democracy, a successful tool to tackle corruption and a critical mechanism for development and increased participation. However, legislating alone will not deliver the desired benefits. Civil society engagement and empowerment are the key requisites for effective implementation.
Former South African President, Nelson Mandela, included the RTI in their constitution as the lack of information and knowledge had allowed the existence of systems such as apartheid in South Africa.
In the absence of independent media, participatory democracy will be challenging. If citizens are to stay informed and government institutions are to be held accountable, there should be free access to accurate and ethical information.
Access to fake news and information is a threat to implement the RTI law effectively. Recent social unrest, such as the incidents that took place in Digana in Sri Lanka, are examples of the impact of a lack of access to accurate information on peace and resilience of the society. Sri Lanka as a country which suffered from a brutal internal conflict, knows the destructive power of such situations which can derail the growth trajectory of the economy. The RTI can be used to disseminate accurate and high quality information to pre-empt such social conflicts which hamper the growth prospects of the country.
Although Sri Lanka has recorded a high level of literacy, the financial literacy statistics are not impressive. According to a survey conducted by Standard and Poor, only 35% of adults in our country are financially literate. This low level of financial literacy acts as a hindrance in reaping the maximum benefits of the RTI regime. In order to enable customers and investors of financial institutions to take informed decisions, the regulatory authorities direct such entities to disclose their financial performances. However, the lack of adequate financial literacy weakens the effectiveness of such proactive disclosures. Eventually, the general public urges the regulatory authority to enforce disclosure through the RTI regime. Such reactive disclosure is less effective in fostering trust. Therefore, by enhancing the financial literacy of citizens and compelling public authorities to improve the reliability of their information and transparency of their procedures, reactive disclosure events can be reduced.
When the general public is sufficiently aware enough to transact only with safe and sound institutions, fragile and risky unauthorised financial entities will be compelled to exit from the system. Financial stability is vital to ensure that financial resources are allocated efficiently in order to promote economic growth and development. Availability of valid and accurate information through a robust RTI regime will therefore make the financial intermediation process efficient, which is key for moving the economy forward.
The absence of a requirement to disclose the purpose of a request for information has created the space for misusing the RTI regime. Obtaining information by business competitors of public authorities and requests made by parties with vested interests go against the good spirit of the RTI regime.
The Indian Supreme Court emphasised the right direction for using the RTI regime in these words: “The Act should not be allowed to be misused or abused, to become a tool to obstruct national development and integration or to destroy the peace, tranquillity and harmony among citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty.” This judicial determination can be used as guidance for the users of any RTI regime.
The Right to information should, therefore, be used as a driving force for empowering people and communities as well as improving equality, sustainability and prosperity. The foundation for a rights-based holistic development model can be established through the effective use of the RTI regime.
“Where a society has chosen to accept democracy as its creedal faith, it is elementary that citizens ought to know what their government is doing” - Justice PN Bhagwati.
[Nishadi Thennakoon, LLM (London), LLB (Hons) Colombo, MICA, Attorney-at-Law. Deputy Director, CBSL. The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official policy or position of any