Gergana Jouleva, Executive Director of Access to Information Programme
The Sheila Coronel’s Measuring Openness: A survey of transparency ratings and the prospects for a global index was recently released. Freedom of Information Advocates were encouraged to involve in a discussion on issues raised in the paper. The reaction was not late of Helen Darbishire and Toby Mendel who have developed the methodology for the first Global Right to Information Rating.
The Index  launched by Access Info Europe and the Centre for Law and Democracy encompasses the access to/freedom of information laws. The global rating was based on the ideal (the model) access to information law.
An approach, which includes indicators of the so called desirable transparency (not legally binding for the authorities but part of the overall understanding of transparency), shall also be considered if a methodology for measuring transparency is to be developed. This model transparency or ideal transparency apparently would trigger discussion but is probably necessary for the development of a global index.
The Global RTI Rating triggered discussions as early as its launch a year ago. The doubts related to the relevance and the precision of the results were overcome by the clearly settled purpose of the study – improvement of the national laws on the base of comparison with the model access to information legislation. This purpose was also accepted by all participants in the debate.
Surprising Rating results like, for example, Sweden being at the 29th place, while Serbia scoring first, were explained with the fact that the quality of legislation is not the same as the quality of implementation.
This desire to measure and compare states with effective access to information legislation dates not from yesterday. Sheila Coronel has attempted to review all efforts for global measuring of openness which have been made up to now, and also the comparative studies on transparency by sectors.
The main disagreement of Helen Darbishire and Toby Mendel with Coronel’s approach is that the existing systems and attempts for measuring transparency should not be evaluated only from the point of view of the Global Index due to the fact that every evaluation – national or international – has its own goals and respectively methodology which is not necessary commeasurable with the Global Index of Transparency. It is as if the authors say to criticize Ferrari because it cannot be used as a family car.
Is a Super Index possible at all?
When we talk about transparency of public institutions, we have to take into consideration a variety of factors. The first is the very general definition of transparency. The meaning entrusted in the transparency of institutions depends on traditions, history, legislation, etc. However, in order to measure transparency, we have to consider several simple and widely accepted indicators.
One common understanding of transparency is of an openness of government information and its use by the public.
On a second place, we should turn to non-legal and legally binding standards for openness.
The non-legal standards depend on the understanding of how a democratic government should work, existing traditions, historical background, culture, etc. In a lot of cases, the researchers themselves are part of all of the above and their mindset and understanding determines the methodology of their studies.
The legally binding requirements for government openness can hardly be limited to only the access to information laws. Most often, the legal requirements are a system of legal acts for openness of government information.
The legal review made by Access to Information Programme (AIP) on the obligations for the public bodies to maintain public registers i.e. structured data bases related to the registration, oversight and monitoring functions of the respective authorities, showed, without pretense to be final and exhaustive, that at least 120 laws, 11 regulations, and 3 internal rules regulate the maintaining of public registers in Bulgaria.
That entire normative basis creates obligations for the maintaining of almost 4,000 public data bases, providing that 516 should also be available online. The lack of legal requirement for online publication does not mean a lack of transparency in practice. The number of public registers available online is considerably higher than those bound to be online by law – 633.
Having into consideration all that complexity, the question remains is active transparency measurable and comparable so that a Global Index to be created. It might be possible but only with strictly defined methodological prerequisites and limitations, clear and empirically testable indicators.
The challenge will be the same like for all ratings – in case the obligations are not set forth by international treaties, an international expert team should settle the indicators to be used as common standards. Nevertheless, even the first international treaty in the area avoided the formulation of standards for active publication, except for the too broadly set forth
“Article 10 – Documents made public at the initiative of the public authorities
At its own initiative and where appropriate, a public authority shall take the necessary measures to make public official documents which it holds in the interest of promoting the transparency and efficiency of public administration and to encourage informed participation by the public in matters of general interest” of the Council of Europe Convention on Access to Official Documents. The Explanatory Report to the Convention clarifies which categories of information contribute to the transparency and promoting the transparency and efficiency of public administration and to encourage informed participation by the public in matters of general interest, precisely: information about structures, staff, budget, activities, rules, policies, decisions, delegation of authority, information about the right of access and how to request official documents, as well as any other information of public interest.
The next question which emerges when measuring transparency is how the institution works with citizens who address it with access to information requests.
Is there an established system for assisting the requestors? Are there:
- Internal rules to be followed by the officials;
- Reading room;
- Technical equipment for copying of the requested documents;
- Register of the filed requests;
- Easy procedure for payment of access to information provision costs;
- Culture of openness and communication of the officials.
Is the process of filing and processing the requests accountable in a way that it would allow checking and tracking the requests?
Furthermore, settlement of the minimum standards without taking into consideration the more developed national systems for proactive online publication might result in the drop-off of the best ones. That is why the evaluation should be accompanied or preceded by a study on the best models or by the development of a transparency model, similar to the model used for the access to information legislation rating. In this case, however, the problem of substituting the desired with the real state emerges – the map may not correspond to the territory since the territory may have changed in the meanwhile.
For instance, although the Right to Information laws rating takes account of Information Commissioner or Commission dealing with appeals, the absence of such does not mean that there is not an appealing mechanism and decisions cannot be appealed before administrative courts, like it is e.g. in Bulgaria. In comparison to the non-binding recommendations that the commissioner would deliver, the court decides on appeals faster and its instructions are obligatory. The solution in such a case would be to consider not only the establishment of the Information Commissioner by the access to information law but also their powers within the national system. I would like to hereby condition that the above refers to the commissioner’s powers with regard to the appeals and not to their functions with regard to oversight and raising awareness on the right of access to information.
We hereby reach the main question – what is the purpose of a global index. If it is to be used by international organizations and donors to evaluate problems in different countries, the indicators should be reduced to the minimum in line with the scope of the aid that would be provided. Otherwise it may turn out that the assessment of the needs would cost more than the aid itself.
If, however, the purpose is to support local advocates in their campaigns for more transparency, it is not very clear if that aim would be achieved since local advocates, who monitor legislation and practices, usually have a clearer picture of what is necessary for more transparent institutions in their countries.
The question Is a Global Index of Openness necessary and possible? remains open.
Measuring Transparency in Bulgaria
Access to Information Programme (AIP) evaluates the level of information provision, the capacity and the openness of the executive bodies since the adoption of the Access to Public Information Act (APIA) in Bulgaria in 2000. Initially, on the base of the analysis of access to information cases referred to AIP for legal help, a survey was developed and performed to evaluate the awareness and the capacity of the administration to implement the requirements of the access to information law.
On the basis of the analysis of the results and the problems with the understanding and awareness of the requirements of the law, handbooks for the administration and a training program for public officials and heads of administrative structures how to implement the APIA were prepared. The focus of both the handbooks and the trainings was on how to process access to information requests and on acquiring practical skills to decide on cases in favor of the overriding public interest although at that time the balance of interests test had not been provided by the law.
The systematization and analysis of the litigation under the access to information legislation, however, has shown that in a number of cases when trade secret, deliberations, negotiations, or third party’s interest exemptions had been applied on requests filed to public bodies, the courts had decided in favor of the overriding public interest even before the 2008 APIA amendments which introduced the balance of interests test in the application of the exemptions.
The second phase of the surveys was related to the involvement of AIP team in international surveys on the implementation of the APIA, to the filing of requests by different groups of requestors. The complexity of the methodology, the variety of conditions and purposes of those surveys allowed comparison of some of the results but reflected only one side of transparency – the readiness of the administration to respond to requests.
The third phase of measuring transparency and the APIA implementation was related to the active transparency and evaluation of the readiness and capacity of the administration to respond to electronic requests. Initially (2006 – 2008), the measuring of the active transparency was subject to AIP advocacy campaign to make the obligation for public bodies to publish certain categories of information online legally binding. When developing the indicators for measuring active transparency, we followed both the legal requirements and the ideal for transparency.
After the APIA amendments in 2008 and the introduction of the obligation for proactive publication online, the indicators measuring the real state of transparency has increased, while those based on the ideal model decreased.
The survey on the public registers complemented the real picture of active transparency since the reverse model was used. The purpose was to identify the legislative obligations for maintaining public registers in Bulgaria and their availability in the Internet.
The ongoing debates on the revision of the EU Directive on the Re-use of Public Sector Information and the open data require an assessment of the formats in which information is published as well in order to be easily re-used.
Three years in a row, within its audits, AIP sends out more than 450 requests yearly to executive bodies in Bulgaria with the main purpose to push for the adoption of common rules for processing electronic requests. Administrative decisions on electronic requests and the way of response is one of the indicators in the Active Transparency Rating of Bulgarian executive bodies. Combined with the qualitative assessment of the responses on these requests, the audit gives the complete picture on how the process is organized and managed within the institutions.
For instance, a local administration in a Bulgarian city– regional center with well organized web site and good active transparency indicators, has been stubbornly refusing to provide information electronically in response to an electronic request, arguing that although the law gives the right to the citizens to file electronic requests, the authorities are not obliged to provide the information in an electronic form. The requestor was invited to travel 400 km to obtain the requested information on paper and pay the provision of access fee on the spot – in the Municipal Information Center.
The objective indicators which received quantitative evaluation – response within the time frame, decision to disclose the information –apparently should be eliminated by the factual non provision and the need for travelling which would have increased considerably the costs for obtaining the information.
AIP experience in measuring different aspects of transparency and openness of public bodies in Bulgaria has shown that the indicators should constantly be reviewed and updated in order to avoid the discrepancy between "the map and the territory."
In 2011, after the quantitative assessment of the significance of the indicators, AIP launched the First Active Transparency Rating of executive bodies in Bulgaria. The Rating was met with great public interest.
When Access to Information Programme started its work sixteen years ago, a Dutch colleague shared a simple indicator for measuring access to information which outlined the difference between the Netherlands and Bulgaria and the problems we were about to deal with. At that time, Sofia had problems with the waste management and the garbage was piled in the streets. He said: “For me, we can talk about development of access to information in Bulgaria when you would be able to get to know with one phone call why the waste management company/ies has not done their job.” Answers to such questions can really be a good indicator of how open the institutions are.
 An interesting study on transparency as a system is of Archon Fung, Mary Graham, David Weil
Full Disclosure.The Perils and Promise of Transparency, Cambridge University Press, 2007, presented by AIP in its monthly FOI Newsletter (in Bulgaria): http://www.aip-bg.org/bulletin/58/05.htm.