On April 2nd, 2020, Toby Mendel and Laura Notess of The Centre for Law and Democracy (CLD) hosted a GFMD member-only webinar titled Right to Information in the Time of COVID-19.  CLD promotes fundamental rights for democracy, with an emphasis on freedom of expression, freedom of association, the right to information, and digital rights. During the current crisis, journalists and media organisations’ right to information is as crucial to democratic society as ever.

The webinar was started by Toby Mendel, Executive Director of CLD, who discussed the governing principles, as derived from international law, which relate to the issue of right to information and how it has been affected by the ongoing COVID-19 crisis. CLD has recently developed a new webpage to compile all legal measures which temporarily alter or even suspend right to information (RTI) obligations due to COVID-19.

Introduction and context

Around the world, Governments are being forced to make huge and unprecedented decisions as a result of the coronavirus pandemic. These decisions are vital to public health and, in many different ways, can impact human rights and the economic success of countries around the world. As this happens, the world is seeing a decline in accountability mechanisms as these decisions are made by governments at exceptional speed. As courts, parliaments, and oversight bodies, are closing or restructuring due to the pandemic, some mechanisms for accountability are shutting down entirely. This brings with it a significant societal shift as people are not expected to criticise authority or hold them to account in their efforts to solve the issue. This has made it difficult for accountability mechanisms to function reliably. With that, human rights voices around the globe are struggling to find their voices and articulate their messages on COVID-19. During the crisis it is vital that the right to information is maintained. It is crucial that all accountability mechanisms remain effective, particularly the right to information. RTI has the potential to play a major role in ensuring successful responses to COVID-19. The public has the right to know what policies and decisions are being made to combat the spread of the virus and how they can engage and participate in those decisions. Governments must be transparent in order to respond effectively to COVID-19.

Actions limiting RTI around the world

Around the world, Governments are taking blanket actions to limit RTI. RTI falls under the Right to Freedom of Expression under international law and restrictions on that right are subject to a three part test.

  1.  Restrictions must be provided by law. That law must be clear and precise

It must be remembered that the current emergency does not allow authorities to act outside of the frame of the law. Some measures internationally have been implemented on dubious legal grounds. Measures that restrict RTI must conform to the legal framework in any given state. Emergencies require rapid law-making process, which in turn may justify marginally less precise and clear legal boundaries that may be required under international law in less extreme circumstances.

2. The law must have a legitimate aim

Around the world, decisions are being made by governments based on the legitimate need to protect people’s jobs, incomes, and health, and to maintain social services. If governments are overly occupied in efforts to deal with the crisis and they cannot deal with RTI requests, that may be seen as legitimate. However, if they are taking advantage of the situation to push back against RTI, this is not legitimate.

3. The restrictions must be necessary

This implies that all measures are the least restrictive and intrusive actions required and that all measures are proportionate. On this, blanket measures used as a means of not processing any RTI requests, or any requests within a specific timeline, are not legitimate. Not all requests are of equal importance and not all public bodies are equally busy dealing with the pandemic, meaning blanket measures against RTI are largely illegitimate. Measures should be limited to the sections of governments who are truly impacted by the crisis. Requests which are about accountability should not be slowed down during the crisis as they are key to international responses to the crisis.

Proactive disclosure is crucial at this time and Governments should be making increased efforts to improve their practices of disclosure around the health sector. In terms of exceptions, there have been claims made that governments cannot release information about the amount of medical supplies that they have available. While they may not be able to release the location of supplies, it is not legitimate to restrict any other information about a countries’ access to medical supplies. The issue of privacy is particularly relevant during a medical crisis. However, privacy must be balanced against public interest when it comes to the right to information.

On states of emergency, under international law, exceptional restrictions are permitted on some rights during a state of emergency. Freedom of expression, which the right to information falls under, is one of those rights that may be restricted.  In certain countries, governments are pushing ahead with proposed RTI law changes despite the current disruption. This is not legitimate as states are not able to hold the consultations that are required in order to do so. Many countries have lost ground on the issue of RTI or have seen their rights restricted. It is vital to ensure that this is challenged as soon as the health emergency ends. However, given the inevitable long and slow recovery process following the pandemic, this will be a difficult task and RTI advocates must make sure that their rights are restored as soon as possible, as soon as the conditions used to justify the restrictions are no longer valid.

How countries are altering their RTI laws during the crisis

Following the introduction, Laura Notess, CLD’s Legal Officer, continued with a discussion of the work they have been doing in this space and provided an overview of what countries are doing to adapt their RTI obligations in response to the COVID-19 crisis.

The RTI Rating 

CLD supports The RTI Rating, a tool to assess the Access to Information legislature and to rank RTI laws globally. This is done using 61 different indicators which ranks the laws and assess their quality. This, however, does not incorporate temporary deviations, such as those caused by the coronavirus pandemic. CLD is trying to incoporate this into the ranking and reflect the fact that these changes are impacting RTI globally, which has led to the development of the aforementioned COVID-19 page of the RTI Ratings site. The list is being updated alongside constantly evolving changes to RTI laws internationally.

Overview of RTI Obligation Deviations 

1. Who is making RTI restriction announcements? 

This is a key question in efforts to understand the validity of RTI restrictions, as the measures must be deemed valid by law. Any suspension of RTI obligations must be done so with formal legal changes, it cannot be an informal statement or policy. There have been many cases of statements made by information commissioners, who are acknowledging the importance of RTI and that governments must act within the law in any alteration of RTI obligations. On the other end of the spectrum, there have been instances of information commissioners suspending obligations to RTI, without clarifying whether they have the legal authority to do so.

Statements have also been made internationally by individual agencies on how they are dealing with this situation and its impact on RTI. This, however, is much more difficult to track. In other situations, general laws have been put in place that suspend operations across the board for all different agencies in any given state. Specific agencies must figure out how that blanket law applies to them in particular. Finally, formal laws are also being passed to suspend RTI obligations. This has been seen in Scotland which outlined, in detail, on what obligations are being suspended or altered, and why.

2. What changes are the legal alterations causing?

The main change being seen internationally is an increase in the timeline for RTI requests to be filled. These tend to be blanket changes that apply across all government agencies. This has been seen in Mexico, Romania, and Brazil, among other countries. These extensions typically range between two weeks and thirty days, however others are extended based on the length of the emergency decree in any given country. These are usually generic extensions, however, some claim that specific conditions must be met.

When it comes to handling “out of office” situations, there is more variation internationally. If an RTI request must be fulfilled in a face-to-face setting, the obligation can be suspended. In other situations, as in the case in India, the body that hears complaints related to the disclosure of information, has said that they cannot meet in person leading to the suspension of all hearings. Information commissioners are also making statements regarding how they will handle complaints and what criteria they will consider while determining complaints related to RTI.

RTI obligations around the world are changing rapidly as governments continue efforts to tackle the COVID-19 pandemic and must be watched closely. There are many countries, such as Hungary, in which sweeping emergency powers are being granted. The executive is being given the power to issue decrees that will suspend constitutional rights. This will likely continue internationally, specifically decrees that target RTI.

Q&A Session

When asked what challenges to RTI and FOIA the pandemic and the state of emergency will bring to news organisations’ ability to access information about Government decisions around public stimulus spending and similar issues, Toby noted that Governments have an obligation to communicate with people through the media when they make important decisions. They must hold these press conferences and communicate with the public, not solely through their proactive obligations to FOIA. Under RTI, certain parts of government (i.e. those who are not currently over-burdened), must communicate in the public interest. Within the physical constraints of the coronavirus, there should be commitments under the law to prioritise RTI requests about COVID-19 preventative measures.

Following this, Toby and Laura were asked about Twitter’s current policies to handle COVID-19 through implementation of machine learning to take action on a wide range of manipulative content, e.g. Twitter will delete content that is not aligned with that of authorised public health information. To this, Toby noted that there is a big challenge for these tech companies dealing with the pandemic. When it comes to fake news on these platforms, it can be seen as a freedom of expression issue as people are confused by regular misleading information. On the other hand, the notion that official sources cannot be contradicted when it comes to COVID-19 information severely limits freedom of expression essentially preventing individuals from disagreeing with what the government says. There needs to be increased independent input into these mechanisms for content moderation on Twitter and other similar platforms. Laura followed up by noting that this particular policy appears to move straight to content removal, rather than flagging it first. This makes it more difficult for tech companies to be fully transparent about the process as users cannot see what has been removed.

More information about CLD’s work can be found on their website and the COVID-19 RTI tracker is available here. If any GFMD members are interested in hosting a webinar as part of our ongoing member-only series, you are invited to register using the sign-up sheet or to contact Jordan.