Ashwutthu
ASSAULT ON THE
RIGHT TO
INFORMATION IN
THE WEST
Prabodh Saxena
Taking a refreshingly new look at the euphoria
engendered worldwide hy right to ;,?formation
legislation, the author analyses the real, ojien hidden,
motives of governments. and their eagerness to share
the truth'·With th'elr citizens...
..
An IAS l?tficer l?f'the 1990 hatch. HP CatjJ:.e;-aild
~as to bealso
currently posted as Secretary. Home Department. Mr
Saxena holds a LL.M in International Human Rights,
London School of' Economics. and is a well-known.
internationally puhlished author on the suhject.
n India, right to information is no more an alien
concept. Rather it is in news every day, generally
for good reasons. While Indians were empowered
with this right recently, the first access legislation,
namely, Access to Public Records Act, 1766 of
Sweden is more than 240 years old. However, it was in
1946 that the right achieved the status of fundamental
human right through a resolution by the General
Assembly of the United Nations in its first session.
As a matter of fact, the history of right to information
can be divided in two phases, namely pre and post
cold war era. Till 1989, only 14 countries had enacted
access legislation over a period of a quarter century.
The law was confined to rich countries, mainly stable
democracies in the West. The perquisites for operating
such law were a professional civil service, human right
traditions, independent judiciary, assertive media, and
active non-governmental organisations. Support or
,
technologically advanced and modern record keeping
a luxury
an essential
which reqUirement.
could only beIt afforded
was conSidered
by the
rich and the advanced countries at a huge cost.
The collapse of the Cold war saw a spurt in access
legislations. The new 'Global Survey of Freedom of
Information Laws for 2006/ by freedominfo.org;
records that now 68 countries have access frameworks,
generally formal legislations. The last decade itself
accounts for half of them. Democratic giants like
India, United Kingdom and Germany joined the club
in 2005. The only notable exception is China, but
China is riding the high tide of technological and
economic growth and currently can afford to tread an
independent path. HO\vever, it appears that for
international consumption China too intends to put up
a very limited access regulation framework, pennitting
information retrieval in selected areas, before the
Beijing Olympics 2008. Whether the extremely
restricted regulations will extend beyond the event is
anybody's guess ...
Is this race for having an access legislation driven b)
the highest traditions of democracy? Is it the desire of
the political leadership to redefine democracy \\-here
executive is made accountable not just to legislature
but to the common masses (read voters) on a day to
8

day basis? Is there a global movement for creating
open, transparent. accountable and participatory
governance? The answer may not be as simple as it
may seem. It is intriguing as we see that a majority of
these nations are not democratic in the real sense of
the tenn. The list of these 68 countries includes a large
number of erstwhile communist countries in Central
Asia and Eastern Europe - all unstable with weak, and
if one may say, "undemocratic democracies". As many
as 28 countries adopted infonnation laws in the 1990s.
The list also includes military regimes and some of the
worst human right violators like Zimbabwe. Israel is
another controversial member of the access legislation
club. Pakistan is said to be operating an ordinance of
dubious validity and uncertain currency.
If we closely look behind the veil, one can fathom the
multitude of real reasons for enactment of access
legislations. It is a known fact that President Lyndon
Johnson of the United States decided to take credit for
the Freedom of Infonnation Act of 1966 and dedicated
it to the people only after unsuccessfully trying all the
tricks to block it. As a matter of fact, the tirst ever
legislation of Sweden was enacted by the government
of the day to bring out the 'misdeeds and omissions'
of the previous regime. Soviet archives were partially
opened by fonner President Boris Yeltsin to expose his
predecessors. Commentators are of the view that
revenge is the major driving force in the erstwhile
communist world - be it Estonia. Lithuania, Latvia. the
Czech Republic, Slovakia. Bosnia and Herzegovina, or
for that matter, Bulgaria.
At other places, scandals were the catalyst for
enactments of infonnation laws, so as to buy peace
with a huge section of protesting citizens. Scandals
over police surveillance and government regulation of
industry forced the enactment of Canadian federal law
in 1983, much after the provinces in Canada had their
laws on the statute books. Protest against awful
conditions of meat packaging industry and public
blood bank culminated in the Irish information law in
1997. A series of huge scandals one after the other,
beginning with the Lockheed bribery case, left the
Japanese Government with no option but to adopt the
. access law in 1999. The American law gained strength
and its present reputation, only after the Watergate
scandal.
Vol I No2
There is also a strong economic angle to the growth of
access ,legislations all over the world. In this age of
globalisation and liberalisation, for a country to
promote investment and attract FDI, it is essential to
project transparent and fast governance. Right to
Infonnation is regarded as a sine qua non of a
progressive and less corrupt country. Multilateral
dono~ agencies and international banks have included
the presence of such legislation in their checklist for
clearing projects. It is an open secret that President
Musharraf enacted the Ordinance in 2002 to satisfy the
preconditions of the International Monetary Fund.
Multinational institutions have thus forced many
nations to adopt access nonns.
Looking at the global scenario, the swelling numbers
do give a legitimate reason for satisfaction. But one
should not lose sight of the fact that legislation is not
the end. Who can appreciate it more than Indians, as
even the most well-read' cannot inventorise the
unending plethora of laws, so many unknown and not
invoked. Philippines does not have a fonnal law,
though the right to information was first included in its
1973 Constitution, and expanded on in its current 1987
Constitution. A 2001 survey co-organized by the
Philippines Centre for Investigative Journalism,
showed Philippines to have the most liberal
. information regime in South-east Asia. 59% of
Filipinos answered "Yes" when asked if records were
available to the public. The right was a handy tool in
the hands of media and activists of Philippines in
overthrowing President Joseph Estrada. Zimbabwe, on
the other hand, has arrested activists and journalists,
including foreigners, under its Access to Infonnation
and Privacy Protection Act 2002, as the taw gives the
government extensive powers to control the media and
suppress free speech by requiring the registration of
journalists, and prohibiting the "abuse of free
expression. "
Whatever be the motivation and intent, the access
legislations have truly started serving the citizens. In
the first three years of its enactment, more than half a
million Thais invoked their Official Infonnation Act.
The way Sumalee, a Thai mother, secured admission
for her daughter in a prestigious school by exposing
the admission scam through the Act, is now a
legendary tale told to students of infonnation regime.
Ashwattha
The American law serves more than 2 million
requests a year.
The progress was smooth and satisfactory, by and
large, till all hell broke loose with the collapse of the
Twin Towers at New York on 11 September 2001,
allegedly by AI Qaida. Immediately thereafter, the
US withdrew information regarding critical
infrastmcture and about monitoring and inspection.
work of federal agencies from the web. A panic
stricken Superpower soon found natural allies in
Western Europe and allies Oul of convenience and
coercion elsewhere. US and its allies in tandem,
launched a "global war on terrorism".
They may not have reached the source of terrorism so
far and there may be serious doubts about the
direction and purpose of this war, but certainly the
cu Iture of openness and transparency is among its
initial casualties. Accordingly, access regime is
facing a new challenge from the increased
coordination and networking among intelligence
agencies post 9/1 I. NATO insists that members
should have laws on classification and unless allies
are assured that information will not be disclosed, it
is not shared in the first place.
Secrecy is now making its entry through the
backdoor. The most common method is to entrust the
public functions to private bodies as the right of the
citizens expire once the function are transferred to the
private actors. What we see today is a rush to
privatise management of water, electricity,
communication, prisons, toll highways, bridges,
hospitals, schools, defence, municipal water supply,
air traffic control and almost all aspects of public
administration. To ensure that private players are not
accountable to their clients, the contracts between the
government and the contractor provides that they will
be considered to be 'held' by the contractor and not
the government.
The only country in the world, which enables citizens
to access records of private companies if the same is
needed for enforcement of a right, is the Republic of
South Africa. This special provision owes its
existence to the historical fact of ownership of
economic pO\\-er in the country resting with the
minority white community, even though the political
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power has now shifted to the majority black.
Elsewhere, a repeat is not expected as private players
are continuously enhancing their. influence in the
polity.
Further, Certificates barring disclosures by Ministers
are becoming common in developed countries. The
1983 Access to Information Act in Canada was
amended by the Terrorism Act in November 2001,
allowing the Attorney General to issue a certificate to
bar an investigation by the Information Commissioner
regarding information obtained in confidence from a
"foreign entity", or for protection of national security,
if the Commissioner has ordered the release of
information. The Australian High Court has recently
ruled that since a Minister is accountable to
Parliament, he is responsible enough to block any
information under the Act in public interest. White
House is now on more occasions in favour of
President's veto on disclosure, and such a certificate in
US is outside the realm of judicial scrutiny. Certificate
business is catching up in United Kingdom as well.
Another mechanism of excluding citizens from
decision making is to raise the level of crucial
decisions from the national, to the international level.
Ironically, there is a huge gap between commitment of
multilateral agencies for pushing access legislations in
member counties, and for transparency and
implementation of access principles in their own
organisations. Only European Union has disclosure
laws comparable to national laws, as elsewhere the
publication is restricted. Therefore, once decisions are
taken at the forum of multilateral organisations, great
deal of it moves out of the public domain. Should we
call it a case of double standards, or is it the natural
tendency to lay tougher standards for others, while
excluding oneself from the rigours?
A more subtle device is to raise the cost of
informati<?n, and that is precisely the trend now in the
West. The path was shown by the Irish Government,
which introduced a flat £ 10 charge for requests.
Following this, according to The Herald newspaper,
the number of requests made by members of the public
dropped by 75%. In the Ontario province of Canada,
3% increase in cost contributed to a sharp 10% decline
in the requests

In the United Kingdom, London is contemplating
'Substantial increase in fees through Freedom of
Information and Data Protection (Appropriate Limit
and Fees) Regulations 2007, to strike what it calls the
right balance between access to information for all and
the delivery of other public services. Currently, a
request can be refused if the cost of dealing with it
exceeds £600. in the case of a Government department,
or £450 for any other public authority. Staff time is
worked out at £25 per hour, for determining whether
the information is held, and for locating, retrieving and
extracting it; and in doing so the public authority may
aggregate requests received from the same person, or
persons who appear to be acting in concert, or in
pursuance of a campaign, within a period of 60
working days.
The proposed regulations allow the authorities to
include reading time, consideration time, and
consultation time also in the calculation of the
appropriate limit The Government argues that a small
percentage of requests and requesters were placing a
disproportionately large burden on public authority
resources, at times to enable journalists to pen lead
stories.
Nobody can deny that there is merit in the argument
and it can be empirically supported, but it is also a
universally accepted fact that substantial increase in
cost is sure to kill the right. The refusal of requests
will become a function of cost, irrespective of the
public interest involved. It is for this reason that the
Government is finding it very hard to push the
regulations. It is interesting to note that though
generally London and Edinburgh do not agree on
major political issues, on sharing information even the
Scottish government is considering bringing in a new
system of charges for FOI requests.
The enthusiasm about right to information has also
been dampened by vociferous protests by the privacy
advocates. One man' s right to information is often at
the cost of privacy of the other. Don't we get irritated
by a tlood of unwanted messages on our mobiles?
Vulnerable personal data like births, deaths. marriages,
divorces, property tax, vehicles, driving licences, court
records, family court proceedings. bankruptcy,
criminal cases reach people not connected with the
II
Vol I No 2
issu~s, and misuse of this information is widely
reported. Instant access to social security numbers,
addresses, phone numbers, credit card numbers, bank
account numbers, tax information has created a new
class of identity thieves.
Similarly, large-scale misuse of government data and
businesses exploitation of commercially valuable
government data is commonplace in developed
countries. Digitisation is seriously compromising civil
liberties as digital biographies are often used for
investigative purposes by businesses, employers,
private detectives.
A worried House of Commons Standing Committee
on Human Rights stressed that "Everyone is the
rightful owner of their personal information, no matter
where it is held, and this right is inalienable". In the
United States, a law has been passed to protect the
confidentiality of driving licences details. Elsewhere,
it is being realised that in the absence of privacy law,
information may cause damage to the same civil
liberties which an access law is supposed to promote
and protect. Hence the contlictbetween these two civil
rights needs to be resolved harmoniously and fast.
Finally a brief word about India as well. Indian law on
right to information is a result of natural process of
maturing of democratic forces over a period of time,
since India attained independence. It is a matter of
satisfaction that the newly released book Blacked Oul-
Government Secrecy in the biformation Age - by
Alasdair Roberts starts with the working of the Act in
India. The Act is fast finding its roots but trivialisation
of requests is a serious issue.
Capacity building of stakeholders and expansion to
rural areas is the main challenge and so is the
capability of the Public Authorities to undertake suo
moto publication of the maximum information. It has
also to be appreciated by the government that mere
passing of the law without proper budgeting for record
management and data retrieval is not sufficient.
It is calculated that in 2004, the. annual cost of
implementing the Act in Canada was US$19.4 million,
each request costing US$ 1,340. In Australia the
comparable figures are US$ 14 million and US$ 330
respectively. The US spends $ I per head annually for
Ashll'ClI/hu

administering the law. It has to be kept in mind that at

best on Iy . 1-2% of the cost of operating the law is
recovered in the form of fee and the rest has to come
as budgctal) support from the State. Unless there is a
reasonable budgetary arrangement provided. it will be
ditlicult to realise the optimum potential of the Act.

It is a painful irony that this right is under the greatest,

challenge in its birthplace, namely the developed and
the democratic Western democracies. which have been
the cradle of human rights and liberalism. Threats of
terrorism. real and perceived, have robbed the essential
strength of these societies considerably. Governments
are competing among themselves to devise means to
dilute the access standards. Sometime the response is
blatant as in case of so called anti-terrorism measures.
At times the response is indirect through privatisation.
use of disclosure barring certificates. decisions at
multilateral level. raising fees etc.

Indiscriminate and ulterior use of law has exposed the

right to opposition from persons concerned about
unwarranted invasion of privacy rights. Unfortunately,
the July 2005 bomb attack in London and the recently
pre-empted terror plan of blowing away planes in the
sky have not helped the matter. It has come as another
opportunity for the votaries of those who believed in
the words of Jonathan Lynn and Antony Lay in Yes
Minister that "Open Government is a contradiction in
terms. You can be open or you can have a
government"

The time for celebration is detinitely far away. The

emphasis should be on regaining the status which the
right till reccntly enjoyed in the western democracies.
Else,\here, there is a need to provide space tor the
right to stabilise itself. Indian bureaucracy and the
citizens particularly have to learn to respect the spirit
behind the right. The vigil and the struggle has to
continue to make this "second wave of
democratisation" real and universal.

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