Legal frameworks aren't being reflected in reality when it comes to transparency.
Long established and widely recognized, the right of access to information is severely curtailed in many European countries due to deficient implementation of existing law.
In case you missed it, this year marks the 250th anniversary since the world’s first transparency law was adopted, in Sweden in 1766. At a quick glance, it seems we have a lot to celebrate in Europe — every country on the continent (bar Cyprus and Luxembourg which have draft laws) now has a transparency law that gives citizens the right of access to government-held information.
The surge in transparency laws over the last few decades does not mean it is a modern fad — it is important to remember that it is a fundamental human right recognized by the European Court of Human Rights and other international bodies and courts such as the Inter-American Court of Human Rights and the UN Human Rights Committee.
Access to information is also an instrumental right because it helps to facilitate citizen participation in decision making and to hold public officials accountable, as well as to fight against corruption, defend civil liberties and guarantee freedom of expression. At the same time as being a right for everyone, it is an essential tool that enables journalists and civil society organizations to carry out their public watchdog functions as part of a democratic society.
Some European countries with older and weaker laws are more transparent in many ways than those with more modern and stronger legal frameworks.
Even though a lot has been achieved and is to be celebrated in this anniversary year, it is important that European countries are not complacent and do not fall behind the rest of the world in guaranteeing this fundamental human right in law and in practice. Recent reforms to transparency laws in Italy and Greece for example should be welcomed, but still show there is a long way to go before they reach international standards.
Most recently in fact, Serbia was knocked off its perch as holder of the world’s best-quality access to information law, passing the crown over to Mexico which is now top of the global Right To Information (RTI) Rating (which ranks the quality of legal frameworks on access to information) following recent reform of the Mexican transparency law.
Only two other European countries (Slovenia and Croatia) are ranked in the top ten globally, and when looking only inside Europe, they are closely followed by other Balkan countries, which generally have stronger legal frameworks on access to information than their west European neighbors.
It is important to remember however, that some European countries with older and weaker laws are more transparent in many ways than those with more modern and stronger legal frameworks. Take Sweden and Finland for example — both have older and weaker laws than Azerbaijan, but are undoubtedly more transparent than the oil-rich Caucasian nation. That does not excuse the fact that on top of Cyprus and Luxembourg which have yet to adopt transparency laws, Austria, Liechtenstein, and Germany should overhaul their current transparency frameworks as they languish in the bottom 10 of the RTI Rating.
Whilst comparing countries against each other is a useful exercise, and proves to be valuable in encouraging positive reform by lawmakers, it is important that we ask ourselves: Are citizens able to exercise their right in practice? Can they get the information they need from public bodies in order to participate in decision-making processes, to hold public officials to account, or to find out how and why decisions are taken?
Recent research conducted by Access Info Europe and partner organizations has found a serious lack of transparency when trying to know how decisions are taken by governments in Europe.
The research into decision making processes found that 60 percent of key decision-making information is not available to the European public. Not enough information is proactively available and not enough is disclosed when requested using national laws, despite European legal frameworks in theory permitting access to information regarding decision-making processes such as minutes of meetings or documents submitted by lobbyists.
Governments across Europe need to take seriously the duty to document information around decision-making processes.
It is not just high-profile cases such as the negotiations of TTIP or other free trade agreements that lack transparency. Our investigations have shown that it is almost impossible to get information from lawmakers in Europe and at the national level about lobbying of processes as technical as food labelling (in this case, by the sugar industry in Spain and the EU), because of exceptions to access being applied or because the information is simply not stored in any way and therefore is lost or not recorded.
When key information regarding policy and legislation is not available to the public, it impedes public participation and scrutiny of decision-making processes.
The food labelling case is not just an isolated example — we were denied access to half of the information requested across the 12 European jurisdictions as part of our research, in many cases by abusing the use of certain exceptions such as the protection of privacy when it comes to government and public officials, or simply because this key information did not exist.
We did find positive cases of access to minutes of meetings, correspondence and/or documents submitted by lobbyists as part of our research — in Ireland, 2.5MB of data on interactions with the tobacco industry was disclosed, and in the UK, we obtained handwritten notes from British officials from meetings in Brussels to revise the European Union’s transparency rules.
Yet more still needs to be done.
Governments across Europe need to take seriously the duty to document information around decision-making processes; they should narrow application of exceptions to access and always take into account any overriding public interest in full (or partial) disclosure of information. The proactive publication of information related to the decision-making process remains crucial, as does the need to reduce the time taken to make information available to the public.
Finally, it is still important that European nations address the limitations of their current legal frameworks and bring them into line with European and international standards, such as the Council of Europe Convention on Access to Official Documents, which has only been signed and ratified by nine of the 47 members of the Council.
It has taken Europe 250 years since the first transparency law to advance to where we are now on the right of access to information. This makes it ever more important that governments ensure that the right of access to information can be exercised not only on paper, but in practice too.
This article was originally written for Osservatorio Balcani e Caucaso as part of the European Centre for Press and Media Freedom (ECPMF) project, co-funded by the European Commission. K2.0 is an ECPMF project partner and has re-published the article with permission. The contents of this publication are the sole responsibility of the project and can in no way be taken to reflect the views of the European Union.