The right to access information is essential in democratic countries. It improves the transparency of public action as well as the accessibility to information and to public services for citizens. The OECD Recommendation on Open Government and the related works of the OECD Public Governance Committee highlight the importance of this right to create a favourable environment for citizen participation and accountability. Although this right has been recognised and applied in several OECD member countries, sometimes for many years, it is relatively new to the MENA region.
The first part of this report focuses on institutions guaranteeing access to information (IGAI) in OECD member countries. The second part deals with IGAIs in Jordan, Lebanon, Morocco, and Tunisia.
The right to access information (RAI) in OECD member countries has constitutional and conventional bases. The fundamental laws of certain countries provide for the creation of IGAIs, but the majority of them were created by lawmakers. The unitary, strongly decentralised, or federal nature of the state determines the existence and the competence of national, local or federated IGAIs. OECD member countries also tend to appoint officials who are specifically responsible for implementing the RAI and capable of acting as correspondents for the IGAIs. IGAIs can be single-person entities, such as Ombudsmen and Information Commissioners, or collegial institutions, such as Access to Information Commissions. They can be public or administrative institutions, the delegates of public authorities, and they can benefit from large degree of autonomy. In practice, IGAI members are individuals with extensive experience in the field of access to information or magistrates. IGAI members are subject to stringent ethical obligations and enjoy several protections.
IGAIs carry out broad missions, such as promoting and coordinating administrative action in favour of access to information. They are also responsible for processing requests that have been refused, and for providing their opinion on the application of the RAI.
In certain situations, despite having financial, human and material resources, IGAIs face the risk of congestion. Depending on their nature and their degree of autonomy, they may also be subject to administrative and political oversight. In any case, it is advisable for parliaments, citizens and civil society to monitor their work.
Since the creation of IGAIs in the MENA region is relatively recent, (the Jordanian IGAI was created in 2007 and the Tunisian one in 2017, but the Lebanese and Moroccan ones have yet to be created), this report examines the RAI, its implementation and the workings of those IGAIs that do exist.
The 2011 revolutions have helped strengthen the RAI in the MENA region. In Morocco and Tunisia, it has led to the explicit integration of this right in their new Constitutions. In certain cases, other constitutional institutions, notably regarding good governance and anti-corruption, may also participate in its implementation.
The participation of the four MENA countries examined in this report in international conventions and organisations has fostered a renewal of the RAI. However, the legislation of these countries on the right to information remains complex and under-used. It is thus important to make sure that the RAI is actually being implemented and that the principle of the freedom of access to information is reflected in each country’s legal framework.
The four countries studied have chosen to implement collegial institutions that have varying degrees of autonomy. The composition of IGAIs, actual or planned under the law, also differs; often, it entails the appointment of professionals in the information and archives sectors by the executive branch.
Apart from the Lebanese IGAI, which is also authorised to fight corruption, the three other IGAIs deal exclusively with matters of access to information. Their general missions consist in monitoring the RAI and promoting the voluntary publication of information. They reflect on the concepts of information, individuals required to communicate information, the limits to the right of access to information, and the penalties incurred for infringing upon the right of communication or improperly disclosing information. In some countries, the persons responsible for access to information in the structures required to communicate information also ensure coordination between the institution with which they are affiliated and the IGAI. Providing continuous training and raising awareness among these public servants, those affiliated with departments that hold information, and to top management represents an essential condition for implementing the RAI.
With a few major exceptions, the system for requesting access to information is relatively simple to implement. The procedures for submitting a claim to an IGAI and by which this IGAI rules on appeals of a refusal to communicate information are similar to those of OECD member countries. The Lebanese and Moroccan legislation creating IGAIs has yet to be implemented, and the Tunisian IGAI still awaits the necessary human and material resources to ensure its effective performance. Generally, it would be appropriate to vest IGAIs with investigative powers, and to create conditions that guarantee the enforcement of their decisions, which could mean, in certain cases, giving their decisions a mandatory nature.
The Jordanian IGAI is legally subjected to government oversight, but the Tunisian, Lebanese, and Moroccan ones are, according to the legal texts, independent from the government. Finally, court oversight will be the prerogative of administrative tribunals in all four countries.
IGAIs should also strengthen its links with the structures required to communicate information through the officials responsible for access to information, with the other institutions concerned with access to information, notably the institutions in charge of the protection of individual data, good governance, prevention and anti-corruption as well as mediation, and with parliament and civil society.
