We are:
• Centre for Law and Democracy (www.law-democracy.org), an NGO based in Canada that works globally to promote transparency, freedom of expression and digital rights. Over the past year, we have carried out work in Indonesia, Myanmar, Lebanon, Afghanistan and Morocco, among many other places.
• Open Democracy Advice Centre (www.opendemocracy.org.za), a South African specialist centre for access to information and whistleblowing, committed to seeing transparency in action.
• Shailesh Gandhi, formerly of India’s Central Information Commission and one of the world’s leading right to information activists.
• Dejusticia. a Colombian NGO that whose mandate is to strengthen and defend human rights.
• Access to Information Program (www.aip-bg.org/en/), a Bulgarian non-profit which has been working for nearly 20 years to improve access to information in Bulgaria and around the world.
September 28 is International Right to Know Day, and organisations around the world use the occasion to promote discussion and engagement on secrecy and open government. Today, 100 countries around the world have access to information laws in force, but in many places these are weak or poorly implemented.
We are passionate about government transparency, and eager to answer any questions you have about your right to know.
What is the one particular thing, above all else, that you want the world to know?
[Michael Karanicolas] That it is ultimately up to you to keep your government accountable. Activists and watchdogs can help, but ultimately the best and only thing to keep governments in line, at least in democracies, is popular will.
What can I do to help stop the Canadian government from muzzling our scientists? They have said that scientists can’t talk about a subject until they’ve published a journal of it, meanwhile our politicians with zero expertise are allowed to spout any BS that will push their personal agendas.
[Michael Karanicolas] Great question! The government of Canada is doing a consultation on open government, and this issue has come up. It’s technically past the deadline, but you can tell them you want scientists to be able to speak freely at: http://data.gc.ca/eng/Open_Science.
Make your voice heard!
[Gabriella Razzano] Word. At the political level its probably the most profound – in RSA we have cabinet reshuffles all the time. Our former head of Defence now heads Housing, etc. Shouldn’t they at least lead decision-making from some point of base knowledge?
That moan aside, open science has as a positive additional consequence the opening of the academic field to writers who may not have the support of costly universities – there is the help that broader communities can then help in attributing strength of research and answers. Like a scientific reddit if you will.
You are sounding like “token opposition” with that canned answer. Don’t you know what a “suggestion box” is for? Making it feel like you’ve had your wuttle say, while mostly used to profile and analyze their prey? The Harper GovernmentTM is infamous for holding “public consultations” that are far less than transparent, for which they are very creative with the results of. And so, that’s your answer? tsk
[Michael Karanicolas] I agree that false consultations are a hallmark of this government, and that powerful suggestions in a forum like that are likely to be ignored.
But if you don’t engage – then it eliminates all pressure, all impetus for them to do anything at all, because they can point to the fact that nobody is complaining about openness and say that it justifies their approach.
Of course the consultations aren’t that meaningful, but if you disengage, then they win.
What is your opinion on the new national security laws in Australia that has been put in place due to fear of terrorist attacks from ISIS extremists. Do you think that these laws are a step back for transparency and democracy?
[Michael Karanicolas] The new laws are absolutely atrocious. Over the past year, we’ve seen global outrage about the abuses carried out by western intelligence agencies, including Australia’s. The idea that the government there is doubling down, rather than seeking to correct these problems, is very troubling indeed.
More specifically – any attempt to crack down on whistleblowers, and to make sure there are no future Snowdens – presents a very real threat to our mechanisms of accountability. Whistleblowing is a vital check on government abuses, and democratic states have a responsibility to protect, rather than prosecute, people who take personal risks to bring abusive behaviour to light.
Which countries (if any) do you feel currently have the best records in terms of access to information and transparency? Are there existing versions of FoI legislation you think should become the gold standard, or is it all generally flawed?
[Michael Karanicolas] It’s not who you would expect! CLD actually has done a rating of the different RTI systems in the world, available at www.RTI-Rating.org, which shows that the best laws are from Serbia, Slovenia and India. India in particular is worth checking out, due to the transformative impact that law has had on the relationship between individuals and their governments.
All laws are flawed in some ways, but there are “gold standards” in the form of model legislation. The OAS has a model law on access to information here: http://www.oas.org/dil/access_to_information_model_law.htm, and there’s another good one by Article 19, an NGO, here: http://www.article19.org/data/files/medialibrary/1796/model-freedom-of-information-law.pdf.
[Toby Mendel] All of the national laws are available on the RTI Rating website (see above). The best of them (as Michael says, Serbia, India and Slovenia) are also sort of Gold standards. You might also want to look at the indicators that we use for the RTI Rating (http://www.rti-rating.org/Indicatorsfinal.pdf) which basically describe the qualities that a good law should have.
Where do you draw the line between right to know vs national security?
[Toby Mendel] Tough one but actually a lot of work has been done on this issue. Have a look at the Tshwanee Principles (http://www.opensocietyfoundations.org/publications/global-principles-national-security-and-freedom-information-tshwane-principles) which elaborate this issue in great detail. Obviously when a real national security interest is engaged, it trumps the right to know. But there are a number of subtleties to this. First, international law recognises a public interest override, whereby even if a national security interest is engaged, if the overall public interest would be served by disclosure, that should dominate (so the NSA revelations would be an example of that). Second, government’s often claim national security interests even when there are none, so claims need to be carefully scrutinised.
I Live in the US. With congress being pretty much useless, the major isps doing everything they can to stop competition for providers, the nsa collecting everything on our computers and phones, the government and isps trying to limit our access to information and content, and a government that in general openly violates our rights for “security” what is the best thing that I as an individual can do to counter/stand up to all of this in an effective way?
[Michael Karanicolas] Wow – you really laid it out. All of those issues – political gridlock and corruption, anti-competitive behaviour among ISPs, NSA abuses – are issues that trouble me as well. But I think it’s important not to get jaded or feel that you’re powerless in the face of this stuff. The only way the situation would actually be hopeless is if people succumb to those feelings and accept the status quo.
There are a lot of NGOs active in the US to fight these issues – CDT, the EFF, the ACLU – who you can support through your time or money. You can get politically engaged and make sure to vote, you can help spread the word on and offline (because online activism can make a difference, believe it or not). There’s a range of options you can do to fight back.
Young Canadian here. I recently saw that clip where the Federal Conservatives red herring-ed the opposition’s question regarding Canada’s military involvement in Iraq during question period. Is this a common tactic in federal parliament, or a stand out case? Is it just me, or is Harper’s government more than particularly secretive?
[Toby Mendel] This is something of a stand-out case. Indeed, it shows a lack of respect for the accountability of the government to the parliament and should not have been allowed (including by the Speaker). The Harper government has certainly been accused of being more secretive than previous governments. But on the key issue of reforming the Access to Information Act, it has simply continued the refusal to do this of the previous Liberal government (there have been strong calls to reform the law for quite a long time now).
[Gabriella Razzano] Young South African responding: parliament remains one of the most important fora for drilling, and getting answered, difficult questions…its common for stronger parties to try and steamroll legitimate discussion; that’s why its so importing for people to get in touch with their representatives and make sure the hard questions keep getting asked!
What are countries you see in very bad situation when it comes to transparency?
[Michael Karanicolas] As of a few weeks ago, 100 countries have right to information laws. Which is great – but of course that means that there are a hundred countries which don’t have right to information laws – including the Philippines, Cyprus, most of the Arab world, etc.
[Toby Mendel] Unfortunately, lots of them. Not just the obvious cases (North Korea, Iran) but also lots of others, including some that might surprise you. Some relatively democratic countries – like Kenya, Ghana and even Costa Rica – do not even have FOIA laws. And some countries even with very good laws – like Ethiopia, 12th position on the RTI Rating from among 100 countries with laws – have done nothing to implement them. Even established democracies – like Canada – are a long way from being as open as they should be. Basically, this is an issue which needs a lot of work in almost every country.
Have you ever feared being arrested in some countries? Do you think your organisation will have an effect on the US and the NSA? What are your thoughts on withholding information “for the safety of the American people”? I never understood how not knowing keeps us safe. Which countries have the biggest government secrets?
[Toby Mendel] I think the biggest risk for us is being thrown out of a country, rather than being arrested. We do human rights work which sometimes governments don’t like (so they could throw us out) but it would just be a hassle for them to arrest us (would engage diplomatic issues, etc.). I have, however, been in a few countries where there are security risks (e.g. Afghanistan and Iraq).
Re. your second question, we are based in Canada. I think there are now enough local (i.e. US-based groups) engaged on the NSA issue that hopefully something will move. However, it is a very difficult one because this is an issue where the civil rights groups are a very long way away from government and the security people in terms of what they thing should be done.
On the third, the idea of “safety of the American people” is far too vague ego justify withholding information and it also has a strong paternalistic flavour to it. But, as I said in an earlier post, it is legitimate to withhold certain information for national security purposes.
Hard to say on your last question and I’m not quite sure what you mean by ‘government’ secrets (e.g. hiding corruption?) For me, secrets are legitimate only where they protect private interests (privacy, for example) or public interests (like national security) but not government interests (the government does not have interests other than those of the people). Otherwise, lots of governments have lots of secrets, both legitimate and illegitimate.
[Michael Karanicolas] For me – not really. As an international person coming in, generally I’m not targeted. However, around the world RTI activists have faced significant threats. There’s a whole wikipedia page on threats to RTI activists in India: http://en.wikipedia.org/wiki/Attacks_on_RTI_activists_in_India
Since the Snowden revelations, the NSA has actually faced a huge surge in FOI requests over the past year – and the greater scrutiny will certainly have an impact on policy.
There can be legitimate reasons to keep information secret. Of course I shouldn’t be allowed to get the names of undercover drug informants. But generally these exceptions are massively overused to hide mundane or embarrassing information.
[Gabriella Razzano] I have most often feared being arrested for non-work related behaviour :/ But flippancy aside, in South Africa the government has been pushing a law called the Protection of State Information Bill, which criminalises the holding or dissemination of ‘confidential’ information. But its not just government officials (i.e. you Bradley Mannings) who would be charged with a crime – it is any member of the public, regardless of whether or not that information is available in the public domain! We’ve been fighting it hard, but if I feared any law – its that one which would probably get me. That, or one on public indecency.
Who decides making a day “international”?
[Toby Mendel] See a post a bit up from this one where I mentioned something about this. Basically, in this case it was launched by a group of NGOs but it has since been picked up in a growing number of countries, including in many cases by official bodies. Here in Canada, for example, it has been endorsed by the (official) Information Commissioner (actually as a whole week)! This one has not yet been approved by the UN, which would be the most formal way of doing it.
We recently launched http://OpenDataKosovo.org as a non-profit that collects, hosts, and distributes government and non-government data. We are software engineers and computer scientists (just 3 of us for now) so we also implement APIs to access that data and prototype apps that showcase how transparency and accountability can be promoted with digital solutions. Which organizations do you recommend we get in touch with from which we could learn from their experience and garner support?
[Gabriella Razzano] A definite first step is getting your government to join the Open Government Partnership as a useful lobbying mechanism – see http://www.opengovpartnership.org/countries.
In South Africa, we have an ngo called Code4SA (linked to Code4Africa and Code4America) if you want to see what we’re up to http://code4sa.org/
I’m quite involved in this space – if you let me know a little bit more about exactly what type of connections would be useful, I can think a bit harder about it for you?
[Toby Mendel] I was sort of waiting to see if our colleague from Bulgaria might answer this one but I think he will come online later. I am not sure if there are groups working on this issue in Kosovo directly but there are certainly groups in most of the countries around it which might be helpful for you. If you go onto our website (www.law-democracy.org) and send me an email I can try to link you up with some of them.
[Alexander Kashumov] Hi, increasingly there are open data groups in Europe that work for more proactive publication of data by governments. You may look also at platforms for online requesting such as http://www.asktheeu.org/ or the online requests platform in UK. I suggest that you also follow the recent developments of the PSI directive implementation (EU Re-use of Public Sector Information Directive). See e.g.: http://ec.europa.eu/digital-agenda/en/european-legislation-reuse-public-sector-information
I’m curious to learn more about the Colombian group, “Dejusticia”, what are some of your top priorities in the country? Has there been a president in last 30years you can think care about human rights and not just ending the civil war? Is there a specific set of information all Colombians should be aware of, but aren’t?
[Vivian Newman Pont] Thanks for your question and your interest in Dejusticia. We work in anti-discrimination, human rights, rule of law, transitional justicie, enviornmental justice and the judiciary. Please check on www.dejusticia.org. I think that working on ending the conflict is a way of caring about all the human rights violated when there is no peace. The present president is working on peace talks with the oldest guerrilla group. There is a lot of of information that Colombians should be aware of but aren´t : information on natural resources and extractive industries, how will PUMA work (the equivalent platform to PRISM in Colombia), the visits received by a politician who is apparently conducting corrupted elections from prison, operational results of the militaries in the past, etc…. Please check on these op-eds: http://www.elespectador.com/opinion/hora-de-transparencia-columna-503006 http://www.elespectador.com/opinion/politica-privada-columna-449614
What do you guys think Ed Snowdens will be known as in 20 years from now?
[Michael Karanicolas] I think he’s already recognized as a hero and a whistleblower in most of the world, and that’s how history will remember him. It’s important to note that, a year since the revelations, the sky hasn’t fallen. We haven’t seen this explosion in terrorism or violence as a result of his leaks – so a lot of the doomsday predictions about the harm he has done to our national security, and the necessity of these programmes to keep us safe, seems overblown.
[Toby Mendel] I would hope for a couple of things:
1) A lot more Snowdens from a lot more countries. The US has a strong culture of whistleblowing but this is a lot weaker in many other countries. 2) Proper legal protection for the Snowdens of the world. In the US, he is not protected because the whistleblower laws do not extend to the intelligence services and in many countries there are similar or worse problems with the whistleblowing laws.
As Michael says, he is a hero who has sparked massive human rights debates in countries around the world (and continues to do so, of course, with his ongoing revelations). We need a lot more of this sort of thing. FOIA laws are great, but they have their limitations (e.g. the sort of information Snowden revealed would never have come out via FOIA).
[Alexander Kashumov] For Europe where I do live (in Bulgaria) Snowdens story created a lot of embarrassment. The revealed information called for reconsideration of the protection of personal data & privacy. Traditionally the level of personal data protection in the European Union is much higher than in the US, so one outcome was new negotiations with the US on the protection of trans-Atlantic flow of data. Internally, the supporters of personal data protection (PDP) in Europe raised the issue of the level of the legal PDP protection here and especially of the grounds and cases in which police and security services are allowed to access retained electronic data (such as e.g. traffic data). As a result, in April 2014 the EU Court of Justice declared invalid the Directive on data retention (Directive 2006/24/EC) which obliged EU states to ensure retention of traffic data for 6-24 months with the purpose to provide access by police and secret services to combat serious crimes. Usually the Access to Information and PDP are regarded as two sides of the same coin, guaranteeing Freedom of Information. Of course, the from the aspect of wistleblowing it is also a remarkable case.
What do you believe is the most damaging aspect about having a government that is not transparent about the way they act and operate? Continuing, how can we help in your mission?
[Michael Karanicolas] Without openness, there’s no effective check on what governments can do. Secrecy breeds all kinds of abuses, including corruption and human rights abuses but also maladministration – if there’s nobody watching what you do, there’s no incentive to do your job efficiently.
Edited for a better answer on how to help: You could get involved with local NGOs that are working to promote human rights in your area. We also appreciate any help in spreading the word and raising awareness: via twitter, or by distributing our statements and publications.
How is Latin America when it comes to access of information as well as the spreading of it?
[Toby Mendel] Pretty good in some ways and not so good in others. About 2/3 of the countries have right to information laws, which is Ok but still 1/3 to go. The laws range quite a bit in terms of quality. The most recent law to be adopted globally, in Paraguay, is very weak, but the Mexican law is one of the world leaders (also in terms of implementation). The first international court decision recognising a human right to information came from Latin America (Inter-American Court of Human Rights) which was a huge breakthrough and something to be really proud of.
[Michael Karanicolas] Some of the newest and most dynamic right to information laws in the world are in Latin America. Brazil and Mexico in particular are doing interesting things here. Hopefully when the Dejusticia people come online they can offer their opinion as well.
[Vivian Newman Pont] Thanks Sokonit for your interest in Latin America. In addition to what Michael and Toby already said, I must mention the evolution of the right to information in Chile. The first international court decision that Toby mentioned arouse from a case in Chile where information on natural resources was not granted to a citizen (Claude Reyes vs. Chile). Very soon after the international ruling that condemned Chile and requested the government to implement a relevant law, the Chileans approved and implemented the corresponding law and are now helping other countries in Latin America to implement their own regulations. I must also add the recent Colombian efforts with a law (Law 1712 of 2014) that complies with international standards.
Where would you put the United States on levels of transparency and accuracy of information (post-911)?
[Michael Karanicolas] The RTI Rating puts the US access system 47th in the world: http://rti-rating.org/country_data.php. In terms of accuracy – it’s tough to say.
[Alexander Kashumov] Michael is right. You should know however that the RTI rating is focused on assessment of the laws on access to information. It does not cover the implementation of laws so far, so you should keep this in mind when reading the rating and ranking of national access regimes.
“A great power comes with a great responsibility.” Do you support that quote? If you post something negative on the internet, and after 1 minute you decide to delete it, but somebody already captured your post… in your perspective, who should be prosecuted? You for posting a negative post on your social media or the person that capture your post before you delete?
[Michael Karanicolas] I think Spiderman is doing a tough job in a difficult world and I fully support his efforts.
People are responsible for their own actions, online as well as off, but it’s important to bear in mind the chilling impact that prosecutions for harmful speech can have. Governments need to exercise this sparingly, in order to preserve the open nature of the Internet.
[Toby Mendel] Hey, I love spiderman 🙂 Seriously, yes, with power comes responsibility (increasing with the extent of that power). This is one of the reasons why governments need to be transparent.
Re. your second question, we probably need to look more closely at what you mean by ‘negative’. But, in general, it is the primary author who should be responsible for leaking secrets. If you look at the US cables leaks, you will notice that Bradley Manning was convicted in the US, but that Julian Assange was never charged, even though he was really the one who distributed the information. This follows the theory that it is up to government to protect its secrets. The matter is a bit different in most countries with defamation, though, because there everyone who helps disseminate the defamation is responsible.
[Gabriella Razzano] You might be interested in the EU HR decision on the “right to be forgotten” – made with the best of intentions of protecting personal information, it is already being abused by persons to force the removal of information that some of us would instinctively believe should remain open…(http://www.smh.com.au/comment/european-right-to-be-forgotten-ruling-should-not-make-people-disappear-online-20140924-10d2jk.html)
Its another interesting example of trying to balance freedom of expression with personal privacy, in online world that often makes the actual PRACTICE of regulation a bit pointless…think of Ryan Giggs and the “super injunction” incident 🙂
I live in Canada, a country where we like to think of ourselves as pretty forward thinking people. How do we rank on the international transparency scale? I don’t trust the major news media organizations. I would like to read impartial, accurate, up to date world news. I’m sick of blatant propaganda, biased journalism, and celebrity news. Where can I find news as described?
[Michael Karanicolas] Canada ranks 57th on the RTI Rating (www.RTI-Rating.org). The interesting thing is that, when we first put out the RTI Rating in 2011, Canada ranked 40th. Our law hasn’t changed – but all over the world countries are passing new laws or revamping their old ones, while our system creaks along.
Every journalist or source has their own bias – both institutional and personal. In my mind, the key is to understand that bias and read everything through that filter. So, for example, I find that the Economist can provide really good insight, but you have to read it knowing that they’re highly pro-business and free market orientated – and that the reporting is going to reflect that.
Edited: It can also be useful to read multiple sources. So, for example, if you know about the Israel-Palestian conflict – read about the same event in Al Jazeera, Haaretz and the Jerusalem Post, and you’ll get a much better understanding of what’s going on than if you rely on just one.
[Toby Mendel] Canada does poorly on the RTI Rating with its outdated law which has not been substantially updated for over thirty years, specifically 57th place globally out of 100 countries with access to information laws. Implementation in practice is not much better with most studies showing Canada having major problems, including overuse of exceptions, delays and excessive charges.
As far as news, I guess the best approach is to triangulate (i.e. read about important news from different sources and then try to figure out what is really going on).
If you had to summarize transparency legislation that you wish more countries would enact, what would you say? Not the why but the actual bullet points of how/what.
[Gabriella Razzano]
- the presumption is openness
- private bodies can be obliged to disclose in certain circumstances, as they impact a transparency environment
- proactive disclosure of information (i.e. through open data or through not requiring a formal request) must be mandated and prescribed to enable officials fully
- and I wish you could mandate “don’t be an ass” as a general policy requirement #eternaloptimist
[Toby Mendel] This gets a bit complicated but we can say there are 5 main features of a good law: 1) Broad presumption of openness covering all information held by all public bodies. 2) Good procedures for making and processing requests (clear timelines, assistance, limits on what can be charged, etc.) 3) Limited exceptions (i.e. clear and narrow rules on when a request my be refused) 4) An independent administrative oversight body. 5) Sanctions for obstruction of access and protections for good faith disclosures pursuant to the law.
Bit technical but you did ask 🙂
Wouldn’t it be better to hold this on a weekday when government offices are open?
[Gabriella Razzano] Governments answer formal requests to information in South Africa around 30% of the time, so them being physically open seems not to have s serious impact anyway…
[Toby Mendel] We are holding it today because it’s International Right to Know Day. We did think about holding it Monday, but decided to respect the actual day.
Often state secrets are kept because keeping them secret is what is best for the public. How do you draw the line?
[Toby Mendel] There is a recognised list of categories of information that can legitimately be kept secret, for example to protect police investigations, national security, the administration of justice, individual privacy, sensitive commercial information, legally privileged information. In addition, under international law, you can only keep information secret if disclosing it would harm one of these interests (i.e. it is not information relating to national security but information the disclosure of which would harm national security). Finally, as I noted in an earlier comment, information should still be disclosed (i.e. even if it would harm a protected interest) if this is in the overall public interest, for example because it exposes corruption, wrongdoing, harm to the environment, etc.
When was International Right to Know Day ratified and/or accepted into standard use?
[Toby Mendel] It was launched on 28 September 2002 by the Freedom of Information Advocates Network (FOIAnet –http://www.foiadvocates.net) and has basically grown and grown since then. It has not yet been officially recognised by the UN (which is a very long and complex process) but it is recognised nationally in a lot of countries and of course by civil society groups (there are about 250 civil society members of FOIAnet from all around the world).
How worried are you about the general naivety and apathy of the general public when it comes to their online privacy?
[Michael Karanicolas] Apathy is always a major challenge when it comes to human rights issues in the developed world. Often people don’t see a critical or immediate threat, so they tune out.
This is actually where awareness raising, derided as “slacktivism”, can actually be really useful if it demonstrates interest or engagement on an issue. If people were more vigilant about online privacy, and complained loudly or stopped using services with shoddy policies on this issue, the landscape would change very quickly.
[Gabriella Razzano] Very. I think a big part of it too is that the “Google culture” of free, has meant that from our earliest engagements online we became used to, in order to access “free” services, exchanging access for our personal privacy. We need to start reprogramming ourselves to understand that the sale of our personal information in exchange for a service is in fact a HIGH price to be paying.
Many of these questions seem focused on the relationship between individuals and governments. And while important, I believe transparency in corporations is equally as important (Goldacre with health trial data, non profit donation tracking akin to opensecrets, valid concentration of market share measurements, etc). Could you speak a bit as to your efforts to promote these causes? Or do you all primarily strive to focus on government transparency?
[Gabriella Razzano] Agreed. A big issue is that most formal mechanisms for ensuring transparency only create rights and obligations between citizen and state. In Africa, the latest wave of access to information laws though tend to extend the right of information to private bodies as well (south Africa, Liberia, etc.) – which is serious progress. The call for the responsibilities of private bodies to be transparent must also be a call we make when trying to promote open data as well.
To my mind – access to information is a tool for helping to equal out unfair distributions of power, reflected in information holding. That that power is often exerted by private actors as well should be clear, though how to actually regulate it becomes more complicated.
[Toby Mendel] I agree with Gabriella and Africa, lead by South Africa, has really pushed forward on this sorts of issues.
In some other countries, they have expanded the definition of a public body to include bodies that are funded by government or that undertake public functions, so this can help too. And, in parallel to primary FOIA obligations, many countries place specific obligations on private companies working in different sectors. A key push is going on now globally to require all companies to disclose their beneficial ownership. But all of this requires a lot more attention, including from groups like us!
Today is International Right to Know Day. Why didn’t I know that before today?
[Michael Karanicolas] Read the rules. We are under no obligation to tell you you have a right to know before today.
Seriously though – around the world we try our best to promote the right to information, and actually awareness is increasing pretty dramatically. Twenty years ago there were only 17 countries with right to information legislation on the books – now there are one hundred. That wouldn’t happen if there wasn’t demand for it. It can be tough to get the word out, but conversations like this help people recognize the importance of transparency, and demand more from their governments.
What is the worst privacy violation that is in a “terms and conditions” agreement that not many people know about?
[Toby Mendel] I’m not sure what the worst is. But many of these agreements basically allow the company on the other side to sell your private information to advertisers. I am not sure that most people understand this. If you are OK with it, fine, but I find it very problematical that these Terms and Conditions agreements are often written in dense, legal language that seems designed to confuse (I am a lawyer and I often have difficulty understanding them). At least people should know what they are agreeing to.
Does it ever make you feel uncomfortable that the government could possibly be monitoring what you do on the internet, including this AMA? Do you believe it is possible that if they (corps or gov) don’t like you they could do something such as call your potential employer and destroy your chances or even worse frame you for a crime? Also, what do you think about blasphemy laws? And, what do you think about laws that restrict speech from supremacist groups?
[Michael Karanicolas] Edward Snowden has said that the NSA engages in monitoring of groups like Amnesty and Human Rights Watch – but these groups are obviously much bigger players – so I’m not sure how pervasive the surveillance interest is in this sector, and whether it would extend to smaller organizations like ours. Obviously, I think it’s atrocious and a waste of public resources. I do my best to safeguard my privacy online – but if they’re going to watch me there’s not a lot to be done. I certainly wouldn’t quit this work over something like that.
My employer is Centre for Law and Democracy – so if the Canadian government called to complain that they don’t like what I’m saying I’m pretty sure they would be on my side.
In terms of blasphemy laws – really interesting question! We’ve had debates on those issues in the Middle East, where things get much more fiery. Check out a short summary of our position on that at: http://www.law-democracy.org/live/wp-content/uploads/2014/05/Protection-of-the-Sacred-and-Blasphemy.pdf
[Alexander Kashumov] It is possible that the government monitors you, of course, this is an obvious risk to be taken. If you wish to change the life of people and you live in a democratic country, this is a bearable risk. On another hand, access to information is also for data about surveillance. More and more in Europe a standard is developed under Art.8 of the European Convention of Human Rights that everyone has a right to know under certain conditions and after certain time whether he/she was subject to surveillance. See practice of the European Court of Human Rights on that issue in cases such as Hadzhiev vs. Bulgaria in 2012, Application no. 22373/04 (http://hudoc.echr.coe.int) and Association for European Integration and Human Rights and Ekimdzhiev vs. Bulgaria in 2009, no. 62540/00, 28 June 2007.
[Toby Mendel] I am certainly very concerned about government surveillance (and corporate collection of private data too). Most of us responding to questions on this AMA are a bit protected inasmuch as we work for groups promoting transparency, and so our employers would be unlikely to take action against us! Hard, also, for us to be framed for crimes given that we live in democracies, but of course a lot of the people we work with in less democratic countries have to be careful.
I am against blasphemy laws inasmuch as they protect religions against criticism. But I support laws that prohibit incitement to hatred, violence and/or discrimination against other groups, including based on religion. In fact, international law requires States to adopt this sort of law.
Why do you think so many people (especially in the US and Europe) care so little about being constantly monitored? I don’t get it.
[Michael Karanicolas] Because there isn’t really a direct understanding of it, I would imagine. They’re sitting alone at their computer, in their house or apartment, and it still feels like it’s a private medium, so they figure there’s no problem even if, in reality, they’re being watched and monitored at all times.
What do you say to someone who wants to make government more accountable, but can’t draw attention to themselves? I have no desire to be any sort of martyr but would like to help.
[Michael Karanicolas] Well – I’m not sure where you’re coming from, but in most of the developed world, and even much of the developing world, you don’t really need to worry about becoming a “martyr” if you get engaged.
So – while the Internet can be great for facilitating anonymous activism, I’d urge you not to shy away from engaging more directly.
What do you think of the current censorship going on in reddit and 4chan with respect to gamergate?
[Michael Karanicolas] I’m not sure what gamergate is, but “censorship” for private companies like Reddit is a tricky issue. Traditionally, it’s a company’s prerogative as to what their policies of publication/moderation are. But, with the growth in importance of private intermediaries like Reddit (or Google, or Twitter) there is an emergent understanding that human rights obligations may attach to them as well. It’s an emergent field, and something we’ll be researching over the coming year.
Even with FoI legislation being passed in a particular country, how do we enforce these standards of transparency? How do we check to make sure that these standards are being met?
[Michael Karanicolas] Stronger access systems will include independent oversight, such as through an Information Commission or Commissioner – often with binding powers of enforcement, such as the ability to fine or impose structural solutions on public bodies that fail to fulfill their obligations.
Implementation is a major challenge, but a strong oversight body like this can make an enormous difference.
[Toby Mendel] Difficult. Actually, it is a lot easier to pass a law than to implement it properly. And a lot of countries are not doing particularly well on this (did you see Gabriella’s comment about how South Africa only answers about 30% of all requests?) Basically, this a longer-term project, involving working with both government and civil society to improve both supply of and demand for information.
[Gabriella Razzano] Implementation is always an issue/ Part of the solution is bringing the public on board to constantly using a law to drive use and force better implementation. Another is to continue awareness-raising and capacity building within departments. Further to this, and even broader, is understanding that a culture of transparency cannot be created just by strict adherence to laws – it is demanding what Etienne Mureinik described as a “culture of justification”. And this means constant and active vigilance from citizens, civil society and state actors.
Do you think South Africa has a lack of transparency, especially regarding things such as the recent Russian nuclear deal? And if so, what should be done about the lack of transparency?
[Gabriella Razzano] Yes. Yes I do. In RSA we have an access to information law, but the actual credence given to transparency is not strong. I worry that it is not only a result of a government that prefers secrecy (or, obviously, finds it easier), but that that instinct is related to the problem that the South African population is becoming increasingly apathetic about demanding answers from their government.
“South African population is becoming increasingly apathetic about demanding answers from their government.” What could change that and where do you see the reasons for that? And do you think this might be actually one of the few positive things about the new EFF? That governing party gets challenged and has to deliver again!?
[Gabriella Razzano] Sorry about the delay- I actually really enjoy seeing the EFF using Parliament as an forum for debating! I think an over focus on “decorum” in Parliament smacks of silencing…however, I’d like to see a little more substance to debating as well now that they have our attention in Parliament! Parliament can be quite fun to go observe, by the way. and depressing. At least, its interesting 🙂
On the apathy issues – i touched on it in another stream, and I think it isn’t good enough to just say “people should be active citizens”. People don’t feel empowered to speak up, because they are dis-empowered across the board…access to information is just one campaign we use to try and empower a variety of voices, but we HAVE to realise that if someone is hungry, or exhausted, or just fighting the end of the day, expecting them to speak up is fruitless.
All these campaigns must work together.
Do you think it’s appropriate for governments to keep at least some information secret from the public? Obviously transparency is good to a point but do you agree things like nuclear codes and identities of clandestine operatives should be kept secret?
[Toby Mendel] Certainly. We have no problem with a justifiable level of secrecy. In both of your examples, it is fairly clear how disclosure of the information would harm a national security interest. The problem is that in most countries, the level of secrecy is way, way beyond that.
[Alexander Kashumov] Of course, access to information is not an absolute right. It could be legally restricted for the protection of certain interests. One may see an exhaustive list of access exemptions in the Council of Europe Convention on Access to Official Documents (Art.3, para.1): a. national security, defence and international relations; b. public safety; c. the prevention, investigation and prosecution of criminal activities; d. disciplinary investigations; e. inspection, control and supervision by public authorities; f. privacy and other legitimate private interests; g. commercial and other economic interests; h. the economic, monetary and exchange rate policies of the state; i. the equality of parties in court proceedings and the effective administration of Justice; j. environment; or k. the deliberations within or between public authorities concerning the examination of a matter. You may find a similar list under Art.4 of the Aarhus Convention (which guarantees access to environmental information) or in the EU Regulation 1049/2001 on access to official documents of the EU institutions. What is more important is that the exemptions are subject to assessment under a three-part test, which means that they may apply only if the following 3 elements are together in place as regards any application of exemption: – provided by law; – for the purpose of protection of the listed interests (strictly and proportionally applied); – it is necessary in a democratic society. Furthermore, an exemption could be applied only if 1) there could be real harm and 2) there is not an overriding public interest in the disclosure. Because the implementation of laws system should guarantee that military nuclear codes are protected from disclosure, but e.g. parameters of nuclear plants or waste or fuel are disclosed in cases of risk or accident.
How do you think access to information has developped in Bulgaria during the last years? Information technologies have finally found their way into our government and non-government institutions but the websites are not functional at all (i.e. every court in Bulgaria has a different type of website and most look really bad at least). I also rarely see any financial reports or info, different than FAQ.
[Alexander Kashumov] Hi, I work in Bulgaria for 17 years for NGO Access to Information Program. True about courts, you may find judgments on the websites, but they are all different. As to financial reports you may see the map of financial & integrity information transparency out of our last survey 2014 here: http://www.aip-bg.org/surveys/db/2014ii/stats+map.phpin A lot more needs to be done as usual, but most of the duties to publish financial reports online (3-month, 6-month, annual) date from 1st January 2014.
Otherwise, since 2000 when the access to information law was passed, people get wider right to information and the public bodies’ transparency enlarges, often under the pressure by courts and the media. What is interesting today as a trend in Europe is the expanding of the obligation to provide information over whole electronic data bases. The European Union (EU) Directive on Re-use of Public Sector Information as amended in 2013 imposes duties on the EU member states to open the government held electronic data bases for use by everyone, subject to limited and transparently calculated costs. All the EU is under obligation to publish methods of calculation and costs up to June 2015. We (Access to Information Program) now work together with the ministry in charge to prepare amendments in the national access law to implement these duties properly.
How successful has EITI been in Latin America (or in Peru specifically) and do you think it has helped to alleviate the social injustice created by nefarious extractive industry projects? What do you think is the most important human rights issue in Latin America now that people should know about?
[Vivian Newman Pont] I am not an expert on EITI, but I do think that this extractive industry transparency initiative has good intentions and includes relevant actors, but must be developed with much more speed, depth and funding….because the private sector behind the private industry is powerful. In relation to your other question, do bear in mind that human rights are interconnected so people should know about health, housing and education as human rights (public schools, health and housing subsidies, etc…) , but also about the public policies developed to protect and guarantee the right to life (and for this you need to know about security and economy). For all of this, accessing public information is not only a human right in itself but a means to obtain and protect the other human rights.
How would you sum up the situation here in Colombia?
[Michael Karanicolas] There have been a number of recent reforms to that country’s right to information system which should hopefully give it a significant boost – though I think Vivian at DeJusticia can give a more detailed answer on how they are impacting things on the ground.
[Vivian Newman Pont] Thanks for your question. It is very broad though. Do you mean the political, the economical or the philosophical Colombia? I have heard that we are a dangerous democracy in danger 🙂 A general and broad answer would be that economically Colombia is growing around 4-5% annually; politically is very divided in 49% right wing and 51% a mixture of all the rest political ideologies that elected the present president (by the way, in yhe first period of this government and with its support, congress approved a law on access to information that complies with international standards) and phiplosophically (by this I include our grave violation of human rights) I would say we are just trying….
Based on what you KNOW, what do you consider to be the top priority things that need to be changed SOONER than later? do you know who is standing in the way of your top priority considerations?
[Michael Karanicolas] That’s a huge question so I’m going narrow it down a lot, and answer it as it relates to the right to information in Canada.
We need to reform the law – the Access to Information Act is over 30 years old and hasn’t been substantially changed since it was passed. We need root and branch reform, as well as greater resources for the access system within the bureaucracy.
I’m in the USA and I rarely ever hear terrible or corrupt things about the Canadian government. Maybe I just don’t pay attention, but it just seems like their government doesn’t cause trouble. I often think of their government as innocuous and I think a lot of Americans (and perhaps other non-Canadian citizens) do. Do you think Canada takes advantage of this worldview and it’s easier for them to hide their secrets? In other words, does the Canadian government often use the USA as a comparison to make the Canadian government look better/less corrupt?
[Michael Karanicolas] I wouldn’t say that we don’t cause trouble. Canada’s record on the environment is far worse than the US, in my opinion.
In my mind though, the comparisons to the US are natural, rather that the result of a concerted policy. When we released the RTI rating saying Canada scores so poorly, the first question we heard from Canadians – in government, and the media, and regular citizens, is how our score compares to the US. But it can make it more difficult to impact change, particularly on issues where Canada and the US both have problematic policies.
[Toby Mendel] First, I think we have to be very honest and accept that, for all its flaws, the US government is more open than the Canadian one. As we have stated before, the Canadian law is very outdated and implementation is weak.
On the more general point about ‘terrible’ and ‘corrupt’ I guess it is hard to say. Certainly the Canadian government (and Canadians in general) are happy to point south when there are problems there (e.g. the NSA surveillance) and say we are doing better. But I am always suspicious of that and we certainly cannot say our government is innocuous (it wields a lot of power even if it doesn’t play the global role the US does. And I think that being a less major power does sometimes allow Canada to hide behind that. And sometimes hearing bad things is a good sign (you are hearing about them). We don’t have a Snowden whistleblower from Canada (yet!)
Could you explain what you mean by “right to know” and go through how you get to the position that it is a right which people possess? Basically I just don’t view this as a right at all, so I’m confused and would like to understand how you define this right and why? Is it rhetoric to underscore a position?
[Toby Mendel] The right to know is sort of a vague terms, I agree. The core of it that is celebrated on this day is the right to access information held by government (freedom of information in the US, access to information in Canada and, my favourite, the right to information in India). This has been recognised by two international courts (European and Latin American) as part of the right to freedom of expression and has also been recognised by formal UN bodies such as the UN Human Rights Committee and the UN Special Rapporteur on Freedom of Expression. So it has a pretty good pedigree and is certainly not just rhetoric.
I just noticed that China is ranked at 70 on your Right to information rating ranking. Which means it scores higher than many European countries (democracies) that I would expect to be a lot more transparent than China, which has a government notorious for censorship. How is this possible?
[Toby Mendel] The RTI Rating only measures a country’s legal framework for the right to information, not how it implements its laws. So you can get some anomalies, such as Ethiopia in 12th place even though it has done nothing to implement its (excellent) law. And 70th position for China is hardly a great score. But a lot of European countries have not done well in terms of adopting strong FOI laws. Indeed, they dominate the bottom parts of the Ranking. Austria, for example, is in last place for a very good reason.
What’s the most pointless thing you’ve seen a government insist on keeping secret, even though “everyone” knows it? For example, my city council refuses to answer how many of its members are Freemasons. This is a pointless thing to ask, but someone did. And now since the council won’t answer, it drives everyone mildly insane.
[Michael Karanicolas] Interesting thing like that just happened in Halifax, where we are based. There was a very high-profile underage rape victim who ended up committing suicide. Her name has been all over the news – because her parents were very prominent after her death in demanding answers. But, in the course of the trial, newspapers were still prohibited from mentioning the case by name, due to a blanket prohibition on naming sexual assault victims. Of course, I understand why the law is in place, but in this case it led to a kind of bizarre situation where newspapers had to hint at which case it was, without saying her name directly.
What should a citizen do when the government doesn’t respond to democracy?
[Toby Mendel] Kind of general question. I believe that if citizens are active in demanding and promoting democracy, then it is hard for governments to refuse (except in the more repressive countries). Ultimately, at least in democracies, we can at least punish governments that do not respond properly at the ballot box.
What if the major issues are not put to a vote?
[Vivian Newman Pont] There are other ways of being accountable. When you say “the government doesn´t respond to democracy…..do you mean it is a corrupt government against the rule of law? Then expose this corruption to the public……do you mean the government is responsible for crimes? then file a criminal complaint against the corresponding person in the government.
What is a top level government conspiracy you have uncovered?
[Toby Mendel] We don’t do a lot of work directly on uncovering conspiracies, more working to give others the tools to do so. But there have certainly been a lot of interesting examples of this. I’m not sure if Shailesh from India is still on (it’s getting late there) but there has been a massive impact on corruption with the right to information there. Also some good examples from South Africa.
My question is for the Dejusticia group. As a Colombian living out of the country, but with a major part of her family still in Colombia, I still get the ripple effect from the violence in our country. How exactly is the group in charge of transitional justice coping with the rise of violent crimes in the country? Does Dejusticia advocate towards the increment in resources for crime fighting? And if not what type of solutions do you encourage?
[Vivian Newman Pont] Thanks ledeluge for your interest and your question. There is in Colombia high and grave violation of human rights. We have more than 25,000 disappeared and around 200,000 dead persons in the framework of the conflict with 5 million of internally desplaced ones which in a way implies that 12% of our population is considered victim. Transitional justice is a temporary justice that addresses these crimes by offering justice, truth, reparation and reconciliation (a specific treatment for demovilized illegal groups, indemnification for victims, etc…). But if your refer to other violent crimes like drugtrafficking maffias and killings, these are not addressed by transitional but by ordinary justice. In this event. Dejusticia does advocate for better resources for ordinary crime fighting but we also advocate for more presence of the state (judges, prosecutors, police, etc…) in our geography, for more peace and less conflict, for less exclusions and inequalities that in turn enhance violence, etc..
What have you achieved? Have you made any place more transparent in some way?
[Toby Mendel] We have helped local groups get FOI laws passed in quite a few countries, and also worked with both governments and local groups to implement these laws better. For example, we are currently working in Myanmar (Burma) both with government and with civil society on a range of law reform efforts, including to develop an FOI law. A while back Michael posted a link to our Indonesia work, where we have helped quite a few local groups, as well as a number of government actors, improve their work in this area.
[Gabriella Razzano] I’ve obviously helped on small cases, but also also helped draft a model law on access to info for Africa which was pretty rewarding….
Directly, they have adopted my suggestions on drafts to improve whistleblowing protections for South Africans (still pretty weak though), and that kind of thing which feels impactful.
What kinds of censorship happens in Canada and what, recently, have people been trying to censor?
[Toby Mendel] Censorship in Canada doesn’t take place in the crude ways that it does in some countries (some countries still literally prior censor the media – i.e. read newspapers before they are allowed to be circulated). But there are still constraints on free speech. One is defamation law, which is too strongly oriented towards plaintiffs. All a powerful company needs to do is to threaten a defamation case against a smaller player and that often leads to a chilling effect on free speech. One of the issues we have contributed to here is calling for the adoption of SLAPP legislation (i.e. laws which give defendants quick remedies, including legal fees, in light of bogus defamation cases being launched against them). A couple of years ago we did a submission to the UN Human Rights Council on Canada and freedom of expression issues, which you can find at: http://www.law-democracy.org/live/canada-un-universal-periodic-review-submission/
Do you think there is a point at which the government should not have to reveal information? If so, what type of information would that include?
[Toby Mendel] So this is something that has been discussed a bit down the list. Basically, there are, under international law, three requirements for governments to refuse access to information:
1) It relates to a category of potentially secret information (national security, privacy, etc. – there are 8-10 types of information recognised as needing protection).
2) The release of the information would be likely to cause harm to that interest (i.e. it is not all information relating to national security but only information that, if it were disclosed, would harm national security).
3) Even if there is a risk of harm, the information should still be released if, on balance, this would be in the public interest. An example might be the purchase of a new weapons system, which involved bribery of officials or some other form of corruption.
Taken together, this is a fair balance between the need for secrecy and the need for openness, which works well when applied properly. The problem is that most governments treat far too much information as secret (even when it does not really relate to one of those interests or would not cause harm if release or there is a good public interest reason for releasing it).
Do you believe 9/11 was an inside job? If so I’d like to hear your theory.
[Toby Mendel] No, I don’t. I’m not really into conspiracy theories. And one of the reasons openness is so important is to provide a more solid base for what we can believe. If you don’t have confidence in the information that you hear, this is very destabilising. And that is why the number of conspiracies is so high in countries that are secretive and do not allow freedom of expression. And people really don’t know what to believe.
What do you want to know?
[Toby Mendel] Oh, where to start?! I want to see every public contract over $500 posted online. I want to see full background information (perhaps redacted for privacy and commercially sensitive information) for all government decisions. I want to see information on all requests for information that have been made to government released weekly (or even updated in real time). I could go on and on 🙂
How do you propose balancing privacy and security in a fashion that successfully prevents terrorism?
[Toby Mendel] Have a look at the Tshwanee Principles (search the word and you will find them in these comments). But more generally, I think that the test set out a few comments below (harm and public interest override) will work to balance openness and national security. I also think the tests we have developed over many years for the offline world in this area (e.g. reasonable suspicion of wrongdoing and procedural controls) will be helpful. But the world has changed and I think we need to sit down with all stakeholders and have very serious discussions about how to move forward on this, perhaps developing some new standards and procedural guarantees. Not very specific, I know, but if I had the golden bullet on this I would have sold it a long time back 🙂
Is there anything we don’t have the right to know?
[Michael Karanicolas] Sure – there are exceptions to the right to information, and information which the government legitimately should be keeping under wraps. I mentioned earlier about the names of police informants or undercover officers. But the only information which should be withheld is that which would cause real harm to a legitimate interest and where withholding the information serves a greater public good. As it stands, every government in the world withholds far more than would be permitted under that standard.
How come Privacy activists are pissed at NSA/FBI/CIA etc for collecting meta-data to protect and capture criminals, yet Google records emails, search histories, cookies, and much more information on us, yet the fight against them is small and shrinking?
[Toby Mendel] That is an excellent question, and one I have also often asked. I don’t really have an answer. But I think part of it is that citizens have accepted the Google/Facebook way of doing business, in which we basically trade them our privacy for their services, and so it is hard for activists to fight that battle. But it is not necessarily something that we should have conceded (or should concede). And we should certainly think about regulatory measures to limit the extent to which we can cede our privacy, even to companies and under a sort of agreement.
