This chapter discusses the procedures for making requests to access information from the entity holding that information, as well as the procedures that the IGAIs of Jordan, Lebanon, Morocco, and Tunisia have for such requests.
Institutions Guaranteeing Access to Information
OECD and MENA Region
Report
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Chapter 9. The processing of requests for access to information
Abstract
The right to request information represents a fundamental aspect of the right to access information, but it is often hard to implement. Requests may be made by an individual or a group of individuals who, for various reasons, seeks data, indications, information, and clarifications held by someone in a position to provide them, and who must respond to their request positively according to the terms and conditions defined in the legislation. The laws of the four MENA region countries examined in this report have dictated precise procedures for making requests of the entity obligated to provide the information. In carrying out their missions, especially when examining decisions refusing access to information, IGAIs examine the application of this legislation, on which it bases its decisions, which are subject to clearly established procedures.
9.1. The request to access information made to the obligated entity
The individual right to access information is enacted with a procedure that includes the presentation of the request for access and the response received, as well as the expenses incurred. It should be noted that the procedure for requesting access to information described below is very general; however, in certain countries, for example Tunisia, the procedure is very detailed.
Only Jordanian legislation reserves access to information to the country’s citizens, even though the draft amendment of the law currently being reviewed by the Parliament, to which it was previously referred, contemplates the removal of this condition of nationality1. Jordanian legislation also specifies that the person requesting must ground his/her decision, whereas the Tunisian law does not require this. In OECD member countries, grounds for the request are generally not required.
The request for access to information must be made in writing in the four countries in question. According to Jordanian and Moroccan legislation, the requesting person requests access to information using a form that the government has created for this very purpose. The Tunisian law provides that the person can make his/her request using either the form or a blank piece of paper. In all cases, the person presenting the request and the documents being requested must be identifiable. According to the Tunisian organic law, the request must specify the preferred means of accessing the information (on site consultation, receipt of a paper or electronic copy, or an extract of the information). Under the Tunisian and Lebanese laws, the request to access information is made directly to the office that holds this information. The Moroccan law indicates that the request must be made to the person responsible for access to information at the entity subject to the law’s provisions. An incorrectly addressed request is redirected to the appropriate office by the recipient public body.
The Lebanese and Moroccan laws mention that the person responsible for access to information will provide the necessary assistance to persons requesting access to information. The Lebanese law provides that the agent responsible for access to information must keep a register of the requests filed, and specifically advise the requesting person of the response times. If the request is insufficiently detailed, the agent will request additional information.
The response times to requests for access to information are clearly stated in the laws examined. According to the Jordanian law, the response must be provided within 30 days. The Jordanian draft amendment to the law currently being studied proposes reducing this timeframe to 15 days2. According to the Tunisian law, the criteria vary: a standard deadline of 20 working days is set upon receiving the request, and a request for on-site consultation requires a response within 10 days. According to the Lebanese law, the response must be provided within 15 days. This period may be extended by another 15 days if the request requires a large amount of information, or the consultation of a third party or of another ministry. The Moroccan law sets a standard deadline of 20 days. This timeframe is doubled under certain conditions if the institution or body in question is only able to respond partially to the request; if the response requires the collection of a large quantity of information; if it is materially impossible to provide the information within the term provided, or; if the request requires that other parties be consulted. The term is reduced to two days under the Tunisian law and three days under the Moroccan law if someone’s freedom or safety is at stake. These measures seek to ensure the protection and freedom of individuals.
A decision refusing a request to access information may be tacit or explicit. Under the Lebanese law, such a decision is made in writing and is duly explained. Article 18 of the Moroccan law provides that the refusal decision must be made in writing, especially when the requested information is not clearly identified or it is being processed.
All the legislation examined establishes the principle that the communication is free, even though they let the requesting person bear any expenses incurred.
9.2. IGAI decisions or recommendations on appeals
A decision refusing a request to access information can be appealed administratively (to the same authority for reconsideration, or a higher instance) or to the IGAI. Article 29 of the Tunisian law on access to information provides that the person requesting access to information may file an appeal to the same administrative authority with the head of the body in question within 20 days of decision’s notification. Article 19 of the Moroccan law provides the possibility of filing an appeal before the same authority, or to a higher instance in the event that a request to access information is refused.
According to the different legislations, anyone who wishes to challenge a refusal to access information either has the choice of appealing to the IGAI or a court, or must appeal to the IGAI before filing an appeal in court. The Jordanian law authorises anyone receiving an explicit or implicit refusal response to file an appeal before the Council of State or the Council for Access to Information. In Lebanon, Morocco, and Tunisia, an appeal must systematically be filed first with the IGAI. Similarly, the person directly concerned by the government’s refusal must file a request to the IGAI, which means that this institution does not have the right to investigate individual refusals at its own initiative.
9.2.1. An appeal filed with the IGAI by the person in question
As it to individual decisions, the IGAI cannot act on its own initiative. The person involved in the decision refusing access to information gives the IGAI jurisdiction. No one may act in the name of a third party.
9.2.2. An appeal based on the refusal of a request to access information
Under Article 4(b) of the Jordanian law, the Information Council is authorised to review individual requests for access to information that have been refused, explicitly or implicitly. According to the Tunisian organic law, the appeal may be filed either directly against the decision by the authority that refused the request for access to information, or against the hierarchical decision following the initial decision (Articles 29 and 30).
Article 22 of the Lebanese law grants the National Anti-Corruption Commission jurisdiction to receive and hear complaints and to hand down decisions in observance of the law. Article 22 of the Moroccan law requires the Commission on Access to Information to record the complaints of persons requesting access to information and to rule on them, which includes the investigation, inquiry, and formulation of recommendations in relation to the complaints. The IGAI is also authorised to formulate recommendations with the aim of settling the conflict.
Observations on the grounds for appeal
In the four countries examined, the refusal of the request for access to information provides the grounds for the appeal, similar to the Roman-Germanic legal traditions prevalent in most OECD member countries. According to other legal traditions, though, the legislation must specify in detail the grounds for filing an appeal before an IGAI (UNESCO, 2015).
Term for appealing before an IGAI
The Jordanian law does not set a deadline for appealing to the IGAI. In contrast, according to the Tunisian law, the person requesting access must file an appeal before the Authority for Access to Information within 20 days of receiving the refusal decision or of the date of the tacit refusal. The Lebanese law sets a two-month term for filing an appeal before the National Anti-Corruption Commission.
Under the Moroccan law, the person requesting access to information may file a complaint with the IGAI within 30 days of either the expiration of the legal term for a response to his/her initial request to the body in question, or of the date of receiving a response to this request.
9.2.3. The investigation of requests for access to information by the IGAIs
The Jordanian Information Commissioner makes recommendations on accepting, presenting, and settling complaints before the Information Council. He receives complaints and submits them to the Council. He takes the necessary administrative and professional measures to exercise the powers and duties assigned to him/her (Art. 6). The law does not clearly define the investigative powers of the Information Council, which does not have the specific power to summon witnesses or to make on-site verifications. For that matter, in this procedure, the burden of proof does not clearly fall to the government authorities.
The Tunisian law contains clearer provisions concerning the procedure for investigating requests for access to information. According to Article 38 of the organic law, the Authority for Access to Information rules on the appeals filed before it. To this end, it may conduct the necessary on-site investigations at the body in question, carry out all inquiries and question any person whose deposition is deemed useful. The persons responsible for the bodies subject to the law’s provisions must facilitate to the greatest extent possible the measures that are indispensable to the optimal functioning of the Authority for Access to Information (Art. 39). The Tunisian IGAI announces its decisions to all concerned bodies as well as to the person requesting access to information, and it publishes its decisions on its website. It seems likely that the Authority for Access to Information completes such provisions with internal organisational measures to be taken. Furthermore, the President of the Authority for Access to Information may invite, without holding a vote, any competent individual to a meeting whose presence is deemed useful. Similarly, a set of provisions seeks to avoid conflicts of interest. Members of the Authority are prohibited from participating in deliberations if they hold a direct or indirect interest in the topic of deliberation, and if they participated directly or indirectly in making the decision that is the subject of the meeting (Art. 51). To the contrary, the Lebanese law does not contain any provisions regarding the investigation of requests for access to information before the National Anti-Corruption Commission. Under the Moroccan law, the Commission for Access to Information receives complaints filed by persons requesting access to information and rules on them, which includes the investigation, inquiry and formulation of recommendations (Art. 22). Article 25 provides that, in carrying out its missions, the Commission will use an administrative mechanism such as the one described in Articles 40 and 41 of Law No. 09-08 on the protection of individuals in the processing of personal data. According to Article 40, the President of the Authority is assisted in the performance of his/her administrative and financial duties by a secretary general responsible for preparing the working documents for the Commission for Access to Information’s meetings, and to keep a register of its resolutions. Under Article 25 of the law on access to information and Article 40 of Law No. 09-08, the secretary general prepares the files for the individual requests for access to information. The President of the Commission may also summon any person, authority or government representative to Commission meetings on a consulting basis to benefit from his/her expertise (Art. 23). For that matter, the Commission’s procedural rules are established in accordance with an internal regulation developed by its President, approved by the Commission, and published in the Official Bulletin (Art. 26).
The four laws examined clearly specify the timeframes within which the IGAI must rule on the appeals filed before it. The Jordanian Information Council must rule on requests filed before it within 30 days of their presentation. A draft law proposes reducing this term to 15 days. The term is 45 days for the Tunisian IGAI, 2 months for the Lebanese National Anti-Corruption Commission, and 30 days for the Moroccan Commission.
The effects of the IGAIs’ decisions are especially important, as they largely determine the effectiveness of the institutions’ actions and justify their existence. The mandatory effects of the Jordanian IGAI’s decisions are not clearly defined. This IGAI lacks the power to inflict penalties on public authorities that break the law. In Lebanon, the law does not say whether or not the decisions by the National Anti-Corruption Commission are binding, but it does specify that the Commission is responsible for advising the relevant authorities on all cases involving the law’s application (Art. 22-2), which can include the means of enforcing its decisions. The recommendations by the Moroccan Commission on Access to Information are not binding on the entities obligated to communicate the information either.
Very innovatively, under the Tunisian law, the decision by the Authority for Access to Information is binding on the body involved in the decision (Art. 30). This measure must be examined in light of the fine provided for in Article 57 of the organic law, which applies to anyone who intentionally impairs access to information within the bodies subject to the law’s provisions, as well as a disciplinary penalty incurred under Article 58 by any agent who does not observe the organic law’s provisions. The Tunisian law also authorises the Authority for Access to Information to announce its decisions to all relevant bodies and to the person requesting access (Art. 38).
Table 9.1. The means of recourse against a refusal of access to information under the Moroccan law
|
Persons requesting information |
Term |
Body/Institutions |
Commission |
|---|---|---|---|
|
Filing of a complaint in case of no response or a negative response |
20 business days |
Receipt and review of the complaint |
|
|
Receipt of the decision by the president of the body |
15 days |
Decision by the head of the body or institution |
|
|
Filing of a complaint by registered letter or email to the president of the commission |
30 days |
|
Receipt and review of the complaint |
Source: Ministry of the Reform of Government and Public Service, L’expérience marocaine sur le projet de loi sur le droit d’accès à l’information [“The Moroccan experience with the draft law on the right to access information”], Contribution to the OECD regional workshop on access to information, Caserta, 18 December 2017.
References
Mendel, T. (2016), Participant’s Manual, Training Programme on the Right to Information for Jordanian Information Officers, UNESCO, Amman, http://stmjo.com/en/wp-content/uploads/2016/06/UpdatedATIManual.Jordan-Officials.16-05-18LS.pdf.
UNESCO (2015), “Assessment of Media Development in Jordan”, UNESCO, Amman, http://unesdoc.unesco.org/images/0023/002344/234425e.pdf