There are many challenges in getting RTI laws properly implemented – US expert

8 March 2017 12:00 am - 0     - {{hitsCtrl.values.hits}}



  • Government could assert national security exemption in case of identifiable harm
  • RTI can be of some help in getting transitional justice
  • Sovereignty and inclusiveness among major global issues

 Who is Will?
Will Ferroggiaro is a Washington (DC)-based consultant with more than 20 years experience working on freedom of expression, government accountability, and human rights. 
He has worked on the right to information in countries around the world, including India, Japan, and South Africa, as well as the USA. For more than a decade, he headed the freedom of information project at the award-winning NGO National Security Archive, where he negotiated policy with the White House and authored reports on implementation of right to information laws.


Will Ferroggiaro, an expert from the United States of America, who is here at the invitation of a Civil Society Organisation, speaks on the importance of the Right to Information Act, Good Governance and democratic norms. 

When looking at this concept called ‘Good Governance’, it was the main campaign slogan of this Government. Today, it is even interpreted as a political slogan. How do you define it?
What I like to think is that there is no culture that is inherently better at Governance than another. Rather, societies all need tools to strengthen institutions to create ‘accountability cultures.’ 
The Right to Information is one important tool in helping media, the average citizen, and others to access information that can be used to pressure Governments and elected representatives to act better, to be accountable in their duties. 

I think the idea of Good Governance is a norm, but practically how to achieve it is through these tools. I do not think there is Good Governance without all of that practical work that needs to be done. 

There are many elements of it. For example, in the context of the United States, we have the Right to Information Law and other laws that require the disclosure of information: Under the Clean Air Act, the companies that emit pollutants have to disclose the number  of toxic pollutants that they release into the atmosphere, which the Government is required to publish information. We have a variety of laws that enhance transparency, including the laws and regulations that govern financial markets. All of these tools together help citizens and different pressure groups to get information to hold the Government accountable and make it more responsive.  From that, we have better governance. 

QYou have been in Sri Lanka for one week. According to your   interactions with those concerned here, how do you see this concept working in 
Sri Lanka?

I think it is very difficult for an outsider, after a week, to have a good idea about the important dynamics in any society. What I would say is that the RTI law is a very good law.  The law reflects best practices from around the world. It is very smart. Sri Lanka should be commended. All of the people who pushed for it for more than 15 years with different drafts of the law should be commended, the media, civil society, as well as the Government and Parliament that unanimously enacted it.  We have had our law in the USA for 50 years. We made a lot of mistakes when we started. Hopefully, Sri Lanka learned from the mistakes the other countries have made.  
For example, we did not put enough money and resources to implement it at the outset.  It is probably going to take additional effort on the part of people – for example, sufficient training and awareness of the law both within and outside the government.  We know this from the experience of many countries. But the law could help the people, in certain parts of the country, who are trying to get reparations or land returned because of the conflict. This would be a way, for example, to know what is happening with the commitments the Government has made to people on these issues, perhaps even to know the nature of the deliberations. 

QThere is a perception that disclosure of all sensitive information will place hurdles in the decision making process. What is your comment?
In general, we have found it is better to disclose more information. Disclosure can help policy deliberations because Government can benefit from informed public debate that addresses issues  the Government may not have foreseen. That said, some countries including the US and the UK have exemptions in their RTI laws allowing - but not requiring - Governments to withhold information if it is still in the pre-decisional stage. Still, the public can ask for it and the Government is required to disclose all but the key facts of that information. Another aspect of this is that it is incumbent upon the media, civil society and others to be ready to utilise that information and help people understand what it means.   I am not only an advocate in the United States; I have made hundreds of requests in the United States and Canada. When you get the information, it is sometimes not  clear, so it is important for media and civil society to analyse this information and educate the people about it.  

One final thought: If there is true harm in disclosing the information, your law and others have exemptions that can be used.  If it is concerning national security, you might review the material, cut out portions, and release the rest. 

It is always better to disclose information; holding on to information is more of a problem.  It increases the number of secrets such that the true secrets can’t be separated from those that can eventually be disclosed and it reduces the public’s trust in the Government.  At the heart of all of this is the public trust. If the Government makes an effort in a good faith, it is actually going to get credit for it.  

QIn what way has the Right to Information Act contributed to the socio-economic development of your country and in other countries where you have experience?
In the United States, we have the national law, and each State has its own law. These help people in knowing what benefits they get, such as for war veterans, about public safety issues, health and more. For example, pharmaceutical companies must submit the test data to the agency concerned for it to declare whether a drug is safe or not; the public and even rival businesses can access that data. In my home State of California, there is a dam overflowing because of snow and rain. We can get information about dam safety issues. We can get access to environmental information - to know who is dumping pollutants. It affects all aspects of life. 

In another area, we used the law to get documents released concerning the activities of US diplomats, military, and intelligence in Central and South America, including death squads, in order to contribute information to the truth commissions, the happenings in countries such as El Salvador and Guatemala, which those Governments supported. We made these requests for declassification under our RTI Law. This information contributes to stability and governance in these countries.

QHow universal is this concept of good governance in the context of certain cultural attachments to it?
The United States is a multi-cultural society. We have people from everywhere. We are not a perfect society in any way; we have racial and other issues. But while we’re not perfect, we are a ‘nation of laws’ not men, as we like to say. In our Constitution, people have freedom of belief, including freedom of religion, freedom of speech, and freedom of assembly, which do not restrict  how one should dress, what language they use, and so on. 

Those are the precepts we live by.  Governance is about laws and adherence to laws and our culture stems from that. Like others, we have corruption, Police abuse, and other lack of governance, but that stems from larger issues of social and economic development rather than culture. 

QHere, there is the perception that if all information were put in the public domain, Sri Lanka could not have successfully conducted the war on terrorism. How do you respond?
First of all, I acknowledge that these are difficult issues. We can talk about global norms and all sorts of things, but I think each context is unique. In terms of disclosure of information related to the disappeared persons, a particular element of the conflict, it could be that the Government uses the proactive disclosure of information provisions of the law to respond in general in this area. The law allows for Government to disclose information of public interest. If there is an identifiable harm in release either in response to a request or in a proactive disclosure, the Government could assert the national security exemption. But we have seen that issues of importance to a society don’t fade away. RTI requests will likely come and they eventually end up in court. This might be an opportunity for the Government to get out ahead of those requests.

QHow have you advised civil society to push for transitional justice through the right to information law?
I am mainly here offering the experiences of the US and other countries on implementing the RTI Laws. I mentioned earlier that I worked to get the US documents on our policy in Latin America released that were then used by the national and UN truth and reconciliation processes in those countries. I believe that this information helped those societies to come to terms with their past and helped increase stability and good governance. So, it is possible that the RTI can be of some help in this area here.

QIn the practice of journalism, we sometimes count on anonymous sources for obvious reasons to get information.  There is fear whether the Right to Information Law will bar it. Instead, it will regulate the flow of information only through the formal channel. It will help officials to dilute or suppress information. What is your view?
The Right to Information Law is one avenue to access information; journalists will always have their sources and other ways of getting information.  We also know that documents disclosed may not tell the full story; that’s why the RTI requests, proactive disclosure of information, and journalists’ efforts are needed to tell the full story.

QThere is this allegation that the principles of Good Governance – democratic norms, human rights etc- are used as a tool for intervention in internal affairs of other countries. What is your view?
One thing I have learned is that right to information campaigns are driven by demand for information. 
They did not come about because of an outside expert showed up. These laws are based on the public’s desire for information. It is their desire to have the Right To Information, for freedom of expression, for example, to know that their taxes are properly used, to know why they don’t have access to adequate water, etc. 

These are all locally-driven needs. I was in Japan in 1998.  One of the big scandals at the time was that the Health Ministry had some blood supplies tainted by HIV. They did not disclose this to some people who got blood transfusion. This was a major scandal. This was the key issue in mobilising people for this right. It opened up this ministry and led to the law there. In the United States, it took ten years to get our RTI into law. One of the issues was that a member of the Congress could not get the Civil Service Commission to give him information. These are all local issues wanting to solve local problems. Sri Lanka is the 115th country with a law now. It is a global norm now.  But it is about power in the end; people want to be their own governors.

QAre these Liberal values under strain in the West including your country because of rising Nationalism?
I would say that the big issue the world is facing is sovereignty and inclusiveness. There are a lot of global changes due to our global trade, global exchange of information and so on. There are financiers from the US investing in commercial ventures in Sri Lanka, as the Chinese do in the US. There is this GSP plus trade benefit too. 

These link us to the world. The more we are interconnected to trade, the more it brings benefits to society. It also brings risks. The key issue as I see it is who is represented at the negotiating tables when decisions are made.  We have not solved that problem. 

When making trade deals, the average person is often left out of the negotiating table.   It has happened to us for 30 years in the US; that is in part why people elected President Donald Trump.  People felt that no one was representing them; when jobs go to other countries, people felt it. We have not solved this issue of inclusiveness and sovereignty. 

QHow true is the claim Sri Lanka has one of the best Right to Information Acts in 
the world?

I have seen the Center for Law and Democracy’s ranking; they do a really careful analysis. As I said, I think Sri Lanka’s law incorporates best practices from around the world. 
For example, the USA law does not have a public interest override like Sri Lanka’s. That said, laws can very well written in the books, but it is their implementation that is most important and most relevant to the people’s lives.

QHow long will it take for Sri Lanka to implement it properly?
Well, I want to be positive, but it has taken 50 years and we are still amending our RTI law, even last year! There are many challenges in getting RTI laws properly implemented, many of which are hard to foresee. 

Many countries have instituted reviews of their laws or provisions of their laws after a year or two, or legislatures will hold hearings to assess implementation. I will just say that these laws are always somewhat a ‘work in progress’ like democracies more generally. 

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