Tunisia's first freedom of information law, approaching its third anniversary, significantly advances the rights of citizens to get information from publicly funded institutions, Human Rights Watch said today. The law's real impact, however, depends on the actual authority of a body created to compel responses from uncooperative institutions.
"With its right-to-information law, Tunisia is once again leading the Arab world in promoting transparency in public institutions," said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. "But the verdict is still out on whether the enforcement system for making government information public will have teeth."
Tunisia passed the "Right to Access Information Law" (Law No. 2016-22) in March 2016, joining the few Arab countries that have such laws. Tunisia's law obliges public bodies to furnish a more extensive range of information than legislation in Jordan (adopted in 2007), Yemen (2012), Lebanon (2017), and Morocco (2017). It also limits what information can be denied. Iraq's Kurdistan Regional Government has had a similar law on the books since 2013.
Tunisia's law requires all government bodies, public institutions, and any institutions that receive public funding to make a range of information public upon request, including organizational charts, legal texts, state agreements, public policies and programs, procurement processes, statistics, and "any information relating to public finances including detailed budget-related data at the central, regional and local levels." Tunisia's law is the first in the Arab world to establish an independent commission to oversee compliance, the Access to Information Authority (known as INAI, its French acronym).
The INAI has issued more than 200 rulings in response to over 600 requests. Its first ruling, in February 2018, ordered a state regional transportation committee to turn over to a taxi drivers' association the minutes of meeting at which taxi licensing procedures were discussed.
In another case, INAI ruled in favor of IWatch, a local transparency and anti-corruption group, on its request to the general director of the National Environmental Protection Agency for a copy of the concession agreement for the company Total to build a gas station. In another request, a citizen won a judgment for a request for correspondence between the Defense Ministry and the Office of the Prime Minister on how to calculate compensation owed to soldiers injured on duty.
INAI's decisions are subject to appeal before administrative courts.
An initial informal tally recorded and presented by the INAI in June found that the authority had found in favor of the petitioner in almost two thirds of its rulings. In almost eight percent of cases filed, the respondent fulfilled the request before the INAI could rule. This indicated, said one INAI council member who spoke to Human Rights Watch, that merely filing a case sometimes was enough to motivate an agency to respond.
Tunisian activists lobbied heavily for the adoption of an access to information law. The law replaced a more limited presidential decree issued shortly after the 2011 ouster of President Zine el-Abidine Ben Ali.
Advocates for access to information including one INAI council member, one member of IWatch, and an independent researcher familiar with the law, described to Human Rights Watch various concerns, though, regarding the current law and its implementation. One is that executive bodies do not always comply with requests, even after orders from INAI and administrative courts. The law provides for a fine for a public agent who intentionally blocks access to information of between 500 and 5000 dinars (US$170 - $1700) and disciplinary sanctions. But the INAI is not aware of any prosecutions being brought under this provision.
The independent researcher said that sometimes the problem is that the office within an agency that responds to information requests cannot get the information from colleagues who have it.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which Tunisia has ratified, enshrines the right "to seek, receive and impart information and ideas of all kinds." The UN Human Rights Committee, the authoritative interpreter of the ICCPR, stated in its General Comment 34 on Article 19:
States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation. The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant.
Tunisia's access to information law stipulates certain types of information that institutions are not obliged to provide, including information relating to national security, defense, international relations, and personal and private intellectual property and data. However, the law explicitly stipulates these exceptions "do not apply to information the release of which is necessary for the purpose of revealing serious human rights violations or war crimes or investigations linked to them or the prosecution of their perpetrators."
Moreover, any invocation by an institution of an exception is "subject to the test of the public interest relative to each request, when deciding to render the material accessible. Proportionality between the interests served by protecting the information and the reasons for asking it to be made public will be taken into account."
The law considers a lack of response to requests within 20 days tantamount to refusal and sufficient grounds for appealing to INAI.
The law imposes no fees for filing an information request or appealing a refusal to the INAI. While the Prime Minister's Office has created a standardized filing form, using that form is not required, and only basic information such as name, address, request, and addressee details are required to file a request, which can be submitted by email, post, fax, or in person at the institution from which information is being requested.
"Tunisia has made a good start in giving the public access to government information," Goldstein said. "But the government needs to make clear that all of its agencies and employees need to comply with the information law or face the consequences."