Draft 'access to information' law is nothing of the sort

Khaled Fahmy , Monday 13 May 2013

The draft legislation on access to information ignores civil society recommendations and will lead to a toothless information watchdog that is beholden to ill-defined 'national security' interests

At a news conference on 2 April, Judge Wael El-Rifaie, assistant for human rights affairs to the Minister of Justice, announced that the ministry had finished drafting a law entitled ‘the right to information.’

Al-Rifaie described the law as “a dream we always had, to achieve the goals of respecting a person’s right to knowledge.”

As a member of civil society that discussed the drafts of the law for nearly two years, I believe the legislation in its current form is disappointing, embedding censorship and upholding secrecy. It is also a serious setback for the revolution’s efforts to attain access to information.

Al-Rifaie said the draft law “aims to enforce integrity and transparency and to combat corruption, as well as to encourage investment and scientific research.” He added that the law “clearly states that the people are the owners of information and guarantees easy access to information for citizens whenever they ask for it.”

Article 2 of the law states: “Information belongs to the people and the state guarantees the right of everyone to obtain information.”

Article 3 obligates “public authorities, ministries, state administrative agencies, public figures” to fall under the law.

Meanwhile, Article 4 forces these organs to “document and record all their operations and collect and protect their documents, as well as to organise them through classification and indexing in a manner that allows access to information in a reasonable amount of time.”

The law also gives citizens the right to approach any public agency mentioned in the law to request information about the nature of their operations, whether such information has been spontaneously and routinely disclosed or is still classified.

Article 6 states “anyone requesting to obtain or view information is not obligated to give any reasons for doing so,” while Article 7 adds that the bodies subject to this law may request a fee for access to information but these fees should be within the limits of the cost of making a copy.

In order to achieve its objective, the draft legislation establishes the National Information Council (NIC) that is entrusted with “drafting policies for transparency, dissemination, access to information and follow-up.” The law also obligates “agencies subject to the law to assign one employee or more to apply this law, who will be called the Information Officer. These officers and their assistants will be subject to technical supervision by the NIC.”

The legislation dedicates an entire chapter for penalties against any information officer who withholds requested information. Also, the law specifies penalties against “anyone who destroys records or documents… or steals or hides information with the aim of concealing it from those who have a right to access it.”

At first sight, therefore, and if in fact this law is passed by the Shura Council, it appears that it will overturn the mindset dominating access to information in Egypt. Those who hold this view, as a rule, believe that information should be concealed, and should only be revealed exceptionally, as a generous concession by the state to its citizens. If that is so, where, then, is the problem? And why object to the draft law?

There are fatal problems in many articles of this draft legislation, while other articles flagrantly contradict the ostensible goals of the law. The draft law has also turned down many substantial proposals and alternative phrasing submitted by the civil society camp – which had exerted a huge effort during a period extending over 24 months.

To explain, the following is a short list of some, and not all, of the problems of the draft law in its current form.

First, the law deliberately avoids defining the term “national security” which is the pliable phrase that has always obstructed disclosure of information. And sure enough, Article 33 explicitly refers to it when it says that information should not be disclosed if such disclosure jeopardises “national security.”

I have previously written about how the vagueness of this ubiquitous term, “national security,” has allowed security agencies to prevent the disclosure of the number of tins of sardines available on the market on the grounds that such information can assist the enemy and thus threaten national security.

In its draft, the civil society camp offered a clear definition of the term “national security” that limited it to military matters, for example “war plans, military operations, the readiness and operational capabilities of military units.” But the Ministry of Justice turned down this proposal.

Second, the draft legislation exempted both General Intelligence and Military Intelligence from being subject to this law, while, as a matter of principle, the civil society camp did not see fit to exempt entire bodies, whatever they are, and instead was willing to exempt only specific documents, communications and information pertaining to such bodies.

For example, General Intelligence and Military Intelligence are involved in many operations that do not pertain to national security (however we define this term), and they conduct economic activities such as managing hotels, restaurants, hospitals, sports clubs and companies. Information pertaining to these activities should not be classified. This is what Judge Hisham Geneina, the director of the Central Auditing Agency, said in recent statements that were critical of efforts to blanket these two agencies with protection, secrecy and opaqueness under the pretext that their operations are classified.

Third, the draft law detracts from the NIC’s independence and turns it into a body that is effectively subject to the executive branch – a branch the NIC should supposedly be monitoring. The NIC chairman is appointed by the president and submits an annual report to him; furthermore, most NIC members are either members of the executive branch or under its influence.

Fourth, the process that the draft law created to obtain and disclose information is ineffective and impractical. It stipulates that government offices will appoint “information officers” in charge of receiving and responding to requests for information from members of the public; these information offices it adds will be subject to technical supervision of the NIC. But since the NIC itself is not independent of the executive branch of the government, one can easily anticipate the awkward position of the information officer when s/he is asked for information that could embarrass her/his boss. For example, what if the information officer at the Ministry of Interior is asked about the number of detainees in Egypt?

Civil society groups proposed creating another agency alongside the NIC, an agency we called the Information Commission, which was to be completely independent of the executive branch of the government.

In our draft, Parliament would nominate the Information Commissioner, and it would be to Parliament that the Commissioner would present his/her annual report. Moreover, information officers would be under the authority of the Commission not the NIC. The point here was to strengthen the position of information officers because then they would be held responsible – albeit indirectly – in front of parliament not the executive branch. But despite the significance of this suggestion, it was ignored.

Five, the draft law granted General and Military Intelligence the right to demand doubling the period during which documents should remain classified, from 25 years to 50. This provision would seriously jeopardise our right to have access to documents pertaining to our modern history. 

These are the main, but not all, the reasons that prompted my colleagues and I in civil society organisations to reject the Ministry of Justice’s draft legislation regarding access to information. We believe that this legislation, despite its name, represents a serious obstacle to access to information, and reinforces the culture of secrecy and suspicion with which information is handled in Egypt.

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