Access to information (ATI) rights are only meaningful if they are both enforceable and enforced. What are the different enforcement models for ATI laws, and what determines success? This World Bank paper draws on case studies to consider the three main ATI enforcement models: (1) judicial proceedings; (2) an information commission(er) or appeals tribunal with the power to issue binding orders; and (3) an information commissioner or ombudsman with the power to make recommendations. While there is no ‘one size fits all’ system, principles of independence, accessibility, affordability, timeliness and specialisation are paramount.
The establishment of an information regime involves four phases: passage of the law, implementation, use, and enforcement. Though the passage of the law may receive the most consideration, and implementation provides the greatest challenge for government, it is perhaps the enforcement phase that is the most critical for the ultimate success of the right of access to information. If there is a widespread belief that the law will not be enforced, this right to information becomes meaningless.
Enforcement of the law or regulation governing access to information involves resolving disputes. It includes receiving appeals when the requester is denied all or partial access or when there is a disagreement over cost, investigating the complaints, and issuing a finding. In some cases enforcement also may include mediation.
Emerging international standards for ATI legislation, coupled with the influence of coordinated civil society campaigns, create pressure for countries to select the second, ‘order power’, model. Each model has advantages and disadvantages, however:
- Judicial proceedings: This model involves appeals against information request denials being reviewed by judges. Judges have wide-ranging investigation powers, but this system can be costly and lacking in accessibility.
- An information commission(er) or appeals tribunal with the power to issue binding orders: This offers the advantage of being relatively affordable and accessible, and able to create a body of precedent through written rulings. Potential disadvantages include: cost for the state; and detailed (and therefore slow) formal procedures.
- An information commissioner or ombudsman with the power to make recommendations: This model emphasises negotiation and is less adversarial, which can lead to greater compliance. It is also less formal (having more limited powers) and is the fastest and most accessible option for complainants. However, recommendations may carry less weight, and there may be no ability to initiate enquiries into systematic abuses.
In designing an enforcement system, decision-makers should consider the specific political, legal and bureaucratic contexts in which it must function. Key factors influencing the effectiveness any model are its real and perceived independence, and the extent of political will to ensure compliance.
- The way in which the commissioner is appointed (by executive order or by parliament) can affect the independence and legitimacy of the office. A selection viewed as partisan will erode public trust.
- Important considerations for continuing independence are: commissioners’ term limits and potential for dismissal, the branch of government to which they report and autonomy in budgeting.
- In deciding who should be appointed as commissioner, factors to consider include the person’s character, how they view their mandate, their reputation and their seniority.
- The commissioner’s ability to forge partnerships with civil society and the media may help protect the office’s independence. Positive working relationships with civil servants may promote compliance, but risk diminishing perceptions of independence.
- Resources (salaries and staffing) must be sufficient for effective performance so as to avoid delays.