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AQ Feature

Government Transparency: Exercising Digital Rights in the Information Age

Building transparency and accountability isn't easy.
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Photo: Bert Myers/Getty

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Nearly 500,000 information requests were filed in Mexico by 2009.

In 2006, the Colectivo Ecologista Jalisco (Jalisco Ecological Collective) filed a freedom of information request for public expenditures on health, education and environmental services in and around the municipality of Juanacatlán, Mexico. The figures they found contradicted earlier information from local officials, who underreported by millions of pesos.1

Just a year later, residents of a small village in northeastern Uttar Pradesh, India’s most populous state, filed an information request to learn why the condition of roads and drains were in a dismal state when funds had been allocated for their construction and maintenance.2 The request for information prodded local officials to resume long-stalled public works projects.

Two examples, 9,100 miles (14,645 km) apart, illustrate how citizens in emerging economies are pushing their governments to become more accountable. So-called freedom of information (FOI) laws—alternatively called access to information (ATI) or right to information (RTI) laws—are now commonplace around the world, with accelerated adoption in the last decade. By 2010, 83 countries had passed FOI legislation, compared to just 12 two decades earlier.3

The drive to enact these laws has been multifaceted—ignited by social movements, political transitions and corruption scandals—and although technology has been a critical enabler in this process, it is certainly not the entire formula.

The contrasting examples of Mexico and India illustrate the evolving forces that are shaping laws governing information rights, access and public institutional openness—and the worldwide movement for open government.

India’s path to RTI began in the 1990s as a local movement. In 1994, farmers’ groups in Rajasthan, a state in western India, began agitating for information about ghost entries of laborers in drought-relief projects in rural areas. By 2004, nine states had adopted RTI legislation before the central government passed the 2005 Right to Information Act that applied to all 28 states.4

In contrast, Mexico’s movement and legislation started at the top, with the passage of the first comprehensive FOI law, the Ley Federal de Transparencia y Acceso a la Información Pública Gubermental (Federal Transparency and Access to Public Government Information Law), in 2002.5 But until 2005, state adoption of the transparency legislation was piecemeal. By 2007, a collective state-driven effort had amended the constitution with additional reforms that promoted the use of electronic tools, citizen anonymity protocols and autonomous enforcement bodies.6 All of Mexico’s 31 states adopted the transparency legislation by 2006, framed by the new Constitutional Code of Best Practices.7

The drive for transparency

While lauded both nationally and internationally, the translation of Mexico and India’s laws into greater transparency, accountability or access to public information has had mixed results.

Available data for India suggest that citizens across the income spectrum8 have used the law to successfully extract data on teacher and health care professional absenteeism, public employment, housing and tenders, and food distribution.9

Although no report tallies the total number of citizens who use the RTI annually,10 a 2009 assessment11 estimated that nearly 2 million requests were filed nationally during the act’s first two and a half years, though it is unclear how many were satisfactorily processed.12 The act requires all government agencies, including state-owned enterprises, to appoint a public information officer responsible for responding to RTI requests within 30 days.13 Petitioners can submit requests anonymously and appeal denial, and the act imposes penalties when replies are not granted on time.14 The Central Information Commission and state information commissions provide oversight, monitoring compliance and complaints.

In Mexico, the freedom of information legislation established a federal agency—the Instituto Federal de Acceso a la Información y Protección de Datos (Federal Institute for Access to Information and Data Protection—IFAI)—to oversee implementation, raise awareness and uphold its overall integrity in practice, including the right to appeal denied requests.15 IFAI held nationwide forums and launched a centralized electronic portal, the Sistema de Solicitudes de Información (System of Information Requests—SISI), to process the bulk of the requests.

More than 172,000 information requests were filed with the executive branch between 2003 and 2006 (the majority of them electronically), reaching nearly 500,000 by the end of 2009.16 After 2007, INFOMEX replaced SISI as a more comprehensive public information management system, integrating data from various government sites, and enabling easier monitoring overall.

However, as in India, responses to requests were often unsatisfactory. Between 2007 and 2008, applications receiving responses of “nonexistent” information rose by 30 percent, climbing again the following year.17 Thus, response rates were inadequate measures of resolution, demonstrating that additional indicators are necessary to determine the utility of these laws.

Uneven Access

For the most part, India implemented a system that is inclusionary by design. States came up with innovative ways to overcome digital (and literacy) challenges. In the north Indian state of Bihar, for example, a call center enables citizens to call in their RTI applications. In other places, mail-in applications have provided an alternative when other forms of access are unavailable.

Still, obstacles remain. Although RTI requires all public authorities to computerize records “within a reasonable time and subject to availability of resources,”18 inadequate technology infrastructure, lack of resources and—in rural areas—literacy issues affect digitization. A 2012 survey found that only about 20 percent of applicants came from villages, where 60 percent of India’s population resides.19 Although India had over 861 million mobile phone subscribers by 2013,20 just over 15 percent of the population had access to the Internet.21

In Mexico, SISI and INFOMEX relied almost entirely on web portals. In contrast to India, just over 75 percent of Mexico’s population lived in urban areas in 2007;22 though urban residence did not guarantee access. According to World Bank statistics, Internet penetration in Mexico in 2005 was roughly 17 percent and by 2010, it was about 31 percent.23 Although Article 9 in the original law sought to remedy access issues by stipulating that computer equipment and information be made available, the digital divide posed prohibitive barriers to access and awareness.24

Deeper implementation problems persist, including information withheld and slow disclosure time, along with a lack of resources for institutions to comply with high volumes.25 Yet the laws have led to a rising demand for information in both societies.

Beyond Open Access

As citizen demands for information grew, adjacent transparency movements emerged. The Open Government Partnership (OGP), a multinational effort to promote government transparency, was launched by eight countries 26 to “promote transparency, fight corruption, empower citizens, and harness the power of new technologies to make government more effective and accountable.”27 Although India was on the early OGP steering committee, it dropped its bid before the launch, critiquing the international review mechanisms. Mexico, conversely, assumed the role of OGP country chair in 2012.

The path of information rights from RTI to OGP—conceivably a new phase in the transparency movement—is neither linear, nor necessarily a path, in either country. In Mexico, OGP narratives emphasize the ability to monitor government commitments through specialized web-based information systems. In India, as civil society weighs the OGP, it is advocating for RTI integration into OGP commitments. It remains to be seen whether fulfillment of OGP commitments benefits from lessons learned in RTI and FOI implementation.

Lessons Learned and the Way Forward

Two emerging economies on opposite sides of the world implementing similar laws, offer several insights for countries with nascent and mature FOI and RTI laws alike.

Considered a model around the world, India’s RTI is well-drafted, with punitive measures in cases of noncompliance. Although public awareness could be higher, civil society is vigilant against attempts to dilute the law. Examples of noncompliance are well publicized. Activism comes from governments as well. For instance, Bihar’s call center, one of many efforts to address the digital divide, came about at the behest of then-Chief Minister Nitish Kumar.

Mexico’s IFAI, meanwhile, continues to reflect a major strength of the original legislation. Early adoption of standardized legal and technical frameworks ensured uniform design across states, helping to highlight discrepancies in its reach and application—a problem that continues into the present. As in India, lawyers, journalists, academics, citizen groups, and others in civil society have tracked the law’s integrity and implementation.

After years of FOI debates and application, realizing the full potential of these laws requires more than access to and disclosure of information. Recent emphasis on open government commitments represents one manifestation of this need. Continuous improvement relies on several other factors, such as strong protections for journalists reporting on these issues, and on challenging loopholes or exceptions in the laws. Adequate budgets are important—particularly at the state level, where the capacity to respond to the accelerated volume of requests requires more staff and technical resources.

In the centuries-long quest for democratic consolidation, an information decade is just the beginning.

Endnotes

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Any opinions expressed in this piece do not necessarily reflect those of Americas Quarterly or its publishers.
Tags: India, Transparency, Freedom of information law

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