By Andrew Smith, (Intern, Human Rights Advocacy Programme, CHRI):
After more than 60 years in existence, the Commonwealth Secretariat (the Secretariat) continues to operate in an environment of secrecy, largely insulated from public scrutiny and the full involvement of civil society organisations.
Over a decade has passed since the right of access to information was recognised as ‘legal’ and ‘enforceable’ at the 1999 Commonwealth Heads of Government Meeting (CHOGM). Its importance has since been reiterated at the 2007 CHOGM and Commonwealth bodies have described it as “fundamental” and “a cornerstone of democracy and good governance.” A model law has also been drafted to assist domestic legislators.
However, the Secretariat’s own information disclosure practices fall far short of international standards. Comparable organisations such as the World Bank, the United Nations Development Programme (UNDP), the European Union and the Council of Europe have all adopted comprehensive access to information policies with many progressive provisions. The International Monetary Fund (IMF) is currently reforming its disclosure policy.
The comparison highlights that the Secretariat’s disclosure practices do not adhere to international best practice standards, that they do not adequately serve its goals of democracy, freedom and sustainable development and that the need for reform is urgent.
Most interstate policies adopt strong object clauses, affirming their commitment to access to information as a fundamental human right. Further to this, their common aim is to maximise the ‘effectiveness’, ‘quality’ and ‘legitimacy’ of their organisation’s output through increased transparency, civic engagement and accountability.
The World Bank states that its commitment to openness is “driven by a desire to foster public ownership, partnership, and participation in operations and is central to achieving the Bank’s mission to alleviate poverty and to improve the design and implementation of their projects and policies.”
The European Union reflects this sentiment, emphasising the importance of openness in its democratic system. As publicly funded organisations, they recognise the democratic right of their stakeholders to hold them to account.
The UNDP identifies its stakeholders as the parliaments, tax payers and public of their donor and programme countries.
The World Bank and IMF both report increased demand for accountability following the financial crisis, the former promising to hold itself to the same human rights standards it expects of its member states.
The Secretariat is a publicly funded body mandated to act in the ‘common interest of the people’. As such it must adopt an access to informational policy which facilitates civic engagement and accountability. This will increase the legitimacy of the Secretariat as a democratic organisation and improve the effectiveness of its policy outcomes.
The rhetoric of the object clauses are mostly supported by substantive policy provisions. Whilst not entirely compliant with international standards, they are substantially more progressive than the Secretariat’s practices.
The Secretariat currently operates a ‘positive list’ approach to disclosure, voluntarily publishing a limited range of documents on its website on a routine basis. Documents include ministerial communiqués, commonwealth declarations, newsletters, speeches, statements, reports and strategic documents.
This discretionary ‘positive list’ policy presumes the confidentiality of undisclosed documents without considering the nature of the information’s content or the interests at stake. All of the aforementioned interstate organisations have abandoned ‘positive lists’ in favour of the principle of ‘maximum disclosure’.
The World Bank regards this as the ‘paradigm shift’ in its policy whilst the Council of Europe explains that now “transparency is the rule and confidentiality the exception.”
The principle of maximum disclosure is formulated to maximise the availability of information, guaranteeing access to information as a fundamental human right. The principle has two features.
Firstly it presumes that all information is eligible for disclosure on request, unless specified under the exemption schedules.
Secondly, there must be an obligation to routinely publish a specified list of documents. Applying this obligation to as broad a range of documents as possible at various developmental stages facilitates civil society involvement whilst reducing the costs associated with information requests. All of the aforementioned policies comply with both features of the maximum disclosure principle.
The Secretariat must broaden its practice of routine disclosure, establish it as a duty and reverse the presumption of confidentiality for unpublished documents. This would represent a substantial departure from current practice and a positive step towards compliance with international standards.
The presumption of disclosure is not absolute and is constrained by the principle of limited exemptions. Confidentiality may be upheld in narrowly defined circumstances for the protection of legitimate interests from specified harms. This requires a case by case assessment and does not permit blanket exclusions based on official classifications or document type.
The Council of Europe schedule is weakest, excluding all classified information from disclosure. The World Bank refuses to disclose information falling within its schedule as it “could” cause harm, presuming confidentiality and failing to engage in an individual assessment of relevant interests. Some exemptions are overly broad, including those relating to ‘corporate administrative matters’ and ‘deliberative information’.
Similarly, the UNDP excludes ‘draft documents’ entirely, limiting the scope for civil society engagement.
The European Union has two exemption schedules. The first complies with international standards, citing legitimate interests. It is also the only schedule with a ‘severability clause’, allowing for the partial publication of documents. A second schedule entirely excludes ‘sensitive documents’ from disclosure due to their confidentiality statuses.
It is critical that exemptions are subject to a ‘public interest override’. If the public interest in disclosure is greater than the likely harm, then there must be an obligation to disclose. The UNDP and Council of Europe policies both lack public interest overrides. The World Bank only provides a discretionary override which can also be reversed to withhold information otherwise routinely disclosed.
The European Union only provides a public interest override for two categories of ‘interests’ under its first schedule and none under the second. The Secretariat must note that these policies fail to provide adequate safeguards against the abuse of the limited exemptions principle.
Documents ‘excluded’ from disclosure must only retain their confidentiality for as long as the public interest demands. Retention schedules must also be available to respondents whose applications are refused. Documents that are scheduled for destruction are presumed to be of no use to the originator, and therefore disclosure cannot be deemed harmful to the public interest.
It is the Secretariat’s blanket policy to retain the confidentiality of all undisclosed documents for thirty years. They are then only made publicly available subject to the Secretariat’s discretion and the consent of concerned third parties. None of the interstate organisations analysed have a default thirty year declassification period.
The European Union and the Council of Europe both set thirty years as the maximum period for refusing disclosure. Within this limit, the European Union provides that excepted material may only remain confidential for the period which it remains harmful.
The Council of Europe and World Bank adopt tiers of confidentiality with limitation periods dependant on document type. The former has periods of one, ten and thirty years and the latter has periods of five, ten and twenty years.
The UNDP does not specify its declassification periods. When initiating reforms the Secretariat must strive to disclose confidential information as promptly as the public interest test allows.
International standards require that refusals to disclose documents are accompanied with reasons and the availability of two tiers of appeal. The independence of the second tier must be guaranteed. The Secretariat has no procedure for requesting documents and therefore no appeals mechanism.
The European Union provides the opportunity for a ‘confirmatory request’ to the original decision maker followed by an appeal to an Independent Ombudsman or the Court of First Instance. This does not apply to ‘sensitive documents’.
The World Bank and UNDP provide for a first review by an internal panel and a secondary review by an independent panel. The World Bank only permits appeals where a prima facie case is made of a policy violation or where there is a public interest case to be made for disclosure. Appeals on the latter ground may not be heard by the secondary panel, meaning the public interest is never determined independently.
The Council of Europe does not have an appeals mechanism. The Secretariat must incorporate a two tier appeals mechanism with a guarantee of independence into its information disclosure policy.
Information request procedures must be accessible and user-friendly, communicating decisions or the requested documents promptly and at a reasonable price. The aforementioned policies all adopt provisions to this effect.
The Secretariat only permits access to unpublished public documents by appointment at the library of its London headquarters, refusing to provide copies. This is extremely restrictive for the majority of commonwealth citizens. Increased accessibility must become a reform priority.
The Secretariat has the opportunity to advance to the forefront of international transparency and democratic standards by adopting a progressive access to information policy. It must undertake reforms immediately in the spirit of transparency with the maximum involvement of Commonwealth stakeholders.
This consultation, along with an assessment of existing access to information policies and model laws, will greatly assist the Secretariat in remedying the deficiencies of its current practices and enable the Commonwealth to better pursue its goals of freedom, democracy and sustainable development.
March 30, 2010