Institutions Guaranteeing Access to Information

Chapter 5. The oversight of the IGAI’s actions in OECD countries

Abstract

This chapter examines the oversight to which IGAIs are subject, whether by administrative, political, parliamentary, or judicial bodies, or by citizens and civil society.

All OECD member countries agree that oversight helps guarantee democracy and a rule of law. It guarantees that all parties observe the principles and laws on which democracy and rule of law are based, and which enable them to function properly. At the same time, oversight procedures ensure the observance of the prerogatives of political power and allow citizens to play their role fully as actors in a democracy. Consequently, IGAIs must be subject to oversight procedures, as long as these respect the specific nature of IGAIs, especially their independence. These procedures are administrative, political, judicial, or exercised by civil society.

5.1. The political and administrative oversight of IGAIs

5.1.1. Administrative and accounting oversight

IGAIs are subject to the traditional forms of oversight for public bodies in their country of origin, even when these are independent institutions. In this latter case, they nevertheless remain exempt from the oversight of their hierarchical superior (for example, the head of government, the minister, or the representatives of the executive branch within the subnational entities); this also exempts them from the oversight bodies operating within the executive branch. Some IGAIs are not even subject to internal financial oversight, such as the French Commission on Access to Government Documents, which is not subject to budget or accounting oversight. IGAIs are instead subject to different forms of external oversight of an administrative or judicial nature. For example, the Australian Information Commissioner’s Office is supervised by the National Audit Office, which sends its report to the Attorney General, and the French Commission on Access to Government Documents is supervised by the Supreme Audit Court.

IGAIs are responsible for adopting all necessary measures to ensure the observance of the relevant national laws, for example by creating internal oversight mechanisms, to monitor both performance and the risk of fraud.

Box ‎5.1. The Australian Information Commissioner, the accountable authority’s responsibility for the financial statements

1. As the Accountable Authority of the Office of the Australian Information Commissioner, the Information Commissioner is responsible under the Public Governance, Performance and Accountability Act 2013 for the preparation and fair presentation of annual financial statements that comply with Australian Accounting Standards. The Australian Information Commissioner is also responsible for internal control as necessary during the preparation and presentation of financial statements. During these stages, he/she is responsible for assessing the Office of the Australian Information Commissioner’s ability to continue its work, taking into account whether the entity’s operations will cease as a result of an administrative restructure or for any other reason.

Source: Australian National Audit Office, Independent auditor’s report, in Office of the Australian Information Commissioner (2017), Annual Report 2016–2017, Australian Government, www.oaic.gov.au/resources/about-us/corporate-information/annual-reports/oaic-annual-report-201617/oaic-annual-report-2016-17.pdf.

5.1.2. Parliamentary oversight

Whether they depend on, or are independent from the Parliament, IGAIs are subject to legislative oversight, either directly or through parliamentary oversight of the executive branch. For example, the French Commission on Access to Government Documents is subject to the ordinary oversight of various parliamentary commissions, and during the preparation of the annual finance law, the Parliament reviews its operations. The Italian Commission on Access to Government Documents sends its report directly to the Parliament. The Irish Information Commissioner must publish an annual report that is sent to each house of Parliament. The Information Commissioner of the United Kingdom submits reports on its work to Parliament. The German Federal Commissioner on Data Protection and Freedom of Information includes in his report a summary of the priority activities for a two-year period and defines perspectives on key data protection issues. The Commissioner’s activity reports are debated in the Parliament, or Bundestag, which then expresses its opinions on all the principal issues regarding the right to information and data protection.

5.2. Oversight by citizens and civil society

In OECD member countries, civil society organisations attach great importance to the right to access information, as this is an essential tool for their work. It allows them to understand the reasons for public action and to react to it, and it allows them to act as a source of public proposals. At the same time, civil society and the institutions responsible for access to information at times have close relations and help one another, for example regarding the dissemination of legislation or the organisation of common trainings, thereby contributing to the achievement of their shared goals. Lastly, citizens act to make sure that the law on access to information and data protection is applied correctly.

A number of NGOs advocate for the right to access information. They conduct inquiries and monitor the application of legislation regarding access to information, propose regulations, launch campaigns to reform the law, and bring legal action. They also provide support and trainings. Lastly, they train networks of national organisations that seek to guarantee greater transparency.

Some NGOs, such as Article 19 and the Open Knowledge Foundation, organise campaigns aimed at citizens and elected officials, conduct trainings, and establish barometers for assessing access to information in different countries. Similarly, Huridocs encourages human rights organisations to use available information and technology, and the association Mediaterre facilitates access to information for anything regarding sustainable development.

5.3. Judicial oversight

In a nation based on the rule of law, administrative decisions are subject to the oversight of a judge and court decisions are subject to appeal before a higher court or the Court of Cassation. IGAIs are not exempt from this principle; however, there are different kinds of recourse against an IGAI’s decisions, in accordance with the legal system of each OECD member country.

The judge that holds jurisdiction to review an IGAI’s decision or opinion varies depending on the legal system of the country in question. In France, decisions by the Commission on Access to Government Documents fall to an administrative judge. In Italy, decisions by that country’s Commission on Access to Government Documents fall to a regional administrative court; disputes involving personal data instead fall to an ordinary court. In Australia, administrative courts hold jurisdiction to assess the merit of the Australian Information Commissioner’s Office’s decisions regarding a refusal to communicate information, or whenever the Commissioner indicates that a matter should be brought directly before such a court. Administrative court decisions can be appealed to the Australian Federal Court when a legal issue is at stake. Decisions by Chile’s Council for Transparency can be subject to a complaint of illegality by the concerned party that is brought before the ordinary appeals court holding jurisdiction. Parties have 15 calendar days from the notification of the Council’s resolution to this end.

Challenging an IGAI’s decision before a court is not uniformly recognized in all OECD member countries. Decisions by Japan’s Commission for the Oversight of Communication and the Protection of Personal Data are not binding in effect and thus do not qualify for judicial recourse and cannot be appealed. A requesting person who is unsatisfied with the decision issued by France’s Commission for Access to Government Documents may file a complaint before the administrative court in the place of his/her residence within two months of receiving the opinion. It should be noted that an appeal filed before an administrative court must be directed against the government administration’s refusal, not against the decision by the Commission for Access to Government Documents. The parties may appeal a final decision from the CAI in Quebec to a judge from the Court of Quebec within 30 days of reception. The appeal may relate to any question of law or of competence. The decision by the Court of Quebec is final.

Box ‎5.2. The right to legal recourse

The example of France’s Commission for Access to Government Documents

A person requesting may file a legal complaint before the administrative court in the place of his/her residence within two months of receiving the opinion of the Commission for Access to Government Documents. The complaint is filed against the government administration’s refusal, not the opinion of the Commission, which is not subject to legal recourse.

Generally, the legal complaint must be filed within two months of the notification of the act in dispute, namely the express or tacit refusal decision by the government administration in relation to a complaint filed with the same or a higher-ranking authority.

The administrative court has six months to rule. The complaint is not suspensive in principle, which means that the decision or act by the government administration continues to apply until the court hands down its decision. In emergency cases, there are expedited administrative proceedings that can suspend the decision’s enforcement.

Source: French Commission on Access to Government Documents, “Suites d’un avis”, https://www.cada.fr/particulier/les-suites-dun-avis.

Reference

Office of the Australian Information Commissioner, (2017): Australian National Audit Office, Independent auditor’s report, in Annual Report 2016–2017, Australian Government, www.oaic.gov.au/resources/about-us/corporate-information/annual-reports/oaic-annual-report-201617/oaic-annual-report-2016-17.pdf