IT BELONGS TO YOU: PUBLIC INFORMATION IN PALESTINE

Transcription

1 IT BELONGS TO YOU: PUBLIC INFORMATION IN PALESTINE

2 Transparency Internatinal is the glbal civil sciety rganisatin leading the fight against crruptin. Thrugh mre than 90 chapters wrldwide and an internatinal secretariat in Berlin, we raise awareness f the damaging effects f crruptin and wrk with partners in gvernment, business and civil sciety t develp and implement effective measures t tackle it. Transparency Internatinal published this reprt with the supprt f the American Peple. ISBN: Calitin fr Accuntability and Integrity - AMAN. All rights reserved. Cver pht: Mark Ntari - Every effrt has been made t verify the accuracy f the infrmatin cntained in this reprt. All infrmatin was believed t be crrect as f May Nevertheless, Transparency Internatinal cannt accept respnsibility fr the cnsequences f its use fr ther purpses r in ther cntexts.

3 This reprt is part f the larger, regin-wide Addressing Crruptin Thrugh Infrmatin and Organised Netwrking (ACTION) prject. In this reprt, the Calitin fr Accuntability and Integrity (AMAN) prvides an in-depth study int Palestinian access t infrmatin laws and regulatins fr the prmtin f integrity, transparency and accuntability in the peratin f public institutins. AMAN prepared this reprt in cperatin with Transparency Internatinal as part f the ACTION prject. A number f civil sciety rganisatins fcusing n demcracy, human rights and gd gvernance funded AMAN in 2000 t act as a platfrm fr cllective effrts t cmbat crruptin and t prmte integrity, transparency and accuntability in Palestine in rder t strengthen the natinal integrity system. AMAN jined the Transparency Internatinal mvement in 2006, at the time the third reginal Transparency Internatinal Chapter, fllwing Mrcc and Lebann. AMAN researches and advcates fr integrity, transparency and accuntability in Palestine.

4 Cntents Executive Summary 4 Trends and challenges 4 Outlk 4 Reginal perspective 4 Recmmendatins 5 Abut the Reprt 6 Objective 6 Methdlgy 6 Structure 6 Limitatins 6 Definitins 6 Access t Infrmatin 8 Access t Infrmatin in Palestine 10 Basic Law 10 Access t infrmatin law 10 Other relevant laws 11 Legal analysis f access t infrmatin 13 Cnclusins 27 Recmmendatins 28 References 30 Annex 1: Overall cmpliance 31 2

5 Abbreviatins and Acrnyms AMAN ACTION ATI UN Calitin fr Accuntability and Integrity Addressing Crruptin Thrugh Infrmatin and Organised Netwrking Access t Infrmatin United Natins 3

6 Executive Summary The right t access infrmatin relates clsely t the demcratic principles f transparency, integrity, and accuntability. AMAN believes that transparency and accuntability are mutually reinfrcing cncepts. Transparency entails public institutins being pen in bth their peratins and their relatinship with citizens, and requires them t make their prcedures, purpses and bjectives public. Similarly, AMAN believes there can be n accuntability withut access t infrmatin. Accuntability dictates that fficials prvide peridic reprts and updates n the results and efficacy f their actins and requires the free flw f infrmatin t the public t enable them t access facts, expse errrs and irregularities, and t hld fficials respnsible. AMAN believes access t infrmatin is a crsscutting issue required fr a strng natinal integrity system and a key part f a preventive strategy t cmbat crruptin and its effects. Trends and challenges In 2005 Palestinian lawmakers made prgress twards realising the right f access t infrmatin, when the Palestinian Legislative Cuncil cnsidered a civil sciety-drafted general access t infrmatin law. After the suspensin f the wrk f the Legislative Cuncil in 2007, the prcess stalled and the parliament is yet t include access t infrmatin as either a cnstitutinal right r a general law. Existing laws including the laws examined in this reprt speak f the right f access t infrmatin, yet fail t include the prcedures and mechanisms necessary t make it a reality, even in the discrete areas t which they pertain. Other laws require public bdies t practively disclse infrmatin, withut including the prcedures fr enfrcement f this bligatin, fr example thrugh citizens infrmatin requests. Outlk Pending the resumptin f the wrk f the Palestinian Legislative Cuncil, the president f the Palestinian Authrity has the authrity t pass a general access t infrmatin law. Civil sciety has been advcating fr such a law, but the president appears nt yet t have mustered the plitical will t mve frward with establishing the legal basis fr the exercise f the right t access infrmatin. Reginal perspective All states in the regin, except Oman, have ratified ne r mre internatinal standards bliging them t implement the right f access t infrmatin. 1 Egypt, Mrcc and Sudan have included this right in their cnstitutins 2 and Jrdan, Tunisia 3 and Yemen have access t infrmatin laws. While the Centre fr Law and Demcracy and Access Inf recgnise Yemen s July 2012 law as 1 Algeria, Bahrain, Egypt, Iran, Iraq, Jrdan, Kuwait, Lebann, Libya, Mauritania, Mrcc, Sudan, Syria, Tunisia and Yemen have ratified the Internatinal Cvenant n Civil and Plitical Rights. Palestine has said it wuld abide by the Cvenant s prvisins. Algeria, Bahrain, Jrdan, Lebann, Libya, Palestine, Qatar, Saudi Arabia, Syria, Tunisia, the United Arab Emirates and Yemen have ratified the Arab Charter n Human Rights. 2 Egypt: Cnstitutin f Egypt 2012, Article 47; Mrcc: Ryal Decree n the Implementatin f the Prvisins f the Cnstitutin 2011, n , Official Gazette n bis, 30 July 2011, Article 27, [accessed 13 May 2013] (riginal text in Arabic); Sudan: Article 39 (1): Every citizen shall have an unrestricted right t the freedm f expressin, receptin and disseminatin f infrmatin, publicatin, and access t the press withut prejudice t rder, safety r public mrals as determined by law. Interim Natinal Cnstitutin f the Republic f Sudan 2005, [accessed 22 May 2013]. 3 Tunisia s law is nt due t cme int frce befre May Freedminf.rg, Tunisia issues decree n access t dcuments, 11 July 2011, [accessed 17 March 2013]. 4

7 particularly strng, 4 Jrdan and Tunisia s laws have bth faced criticism fr being t restrictive. 5 Civil sciety and members f parliament have submitted draft laws t the parliaments f Bahrain, Egypt, Kuwait, Lebann, Mrcc, Iraq, Palestine and Sudan. 6 Recmmendatins TABLE 1: Recmmendatins KEY RECOMMENDATIONS The Palestinian Authrity shuld revise the draft access t infrmatin law in line with internatinal standards and, as lng as the Palestinian Legislative Cuncil is inperative, the president f the Palestinian Authrity shuld pass the law. The president shuld ensure that public bdies effectively implement access t infrmatin prvisins when passed. The Palestinian Authrity shuld prepare and disseminate a public infrmatin guide n prcedures fr requesting infrmatin frm fficial bdies and mechanisms available fr enfrcing the respnse. 4 Centre fr Law and Demcracy, Yemen passes strngest RTI law in the Arab wrld, 10 June 2012, [accessed 22 May 2013]. 5 Business Anti-Crruptin Prtal, Jrdan Cuntry Prfile - Public Anti-Crruptin Initiatives, [accessed 22 May 2013]; Freedminf.rg, 11 July 2011; Said Almadhun, Access t infrmatin in the Middle East and Nrth Africa Regin: An verview f recent develpments in Jrdan, Lebann, Mrcc and Tunisia (Washingtn DC: Wrld Bank Institute: 2012), [accessed 22 May 2013], pp Said Almadhun, Status f freedm f infrmatin legislatin in the Arab wrld 2010, Open Sciety Justice Initiative, 6 February 2010, 0-%20SA%20-% dc/view [accessed 22 May 2013]. 5

8 Abut the Reprt Objective In this reprt, AMAN analyses the current legal status f the right f access t infrmatin held by public bdies. The bjective is t identify gaps and weaknesses in Palestine s access t infrmatin architecture and t advcate fr the Palestinian Authrity t pass and effectively implement a law guaranteeing the right f access t infrmatin. Methdlgy AMAN cnducted research fr this reprt between September 2012 and March Researchers used primary and secndary legal surces fr the cntents f this reprt. Researchers tk internatinal standards n access t infrmatin as a reference pint. Structure The first sectin f the reprt prvides an verview summarising internatinal principles n access t infrmatin. The secnd examines the applicatin f these principles within a selectin f Palestinian laws, including the Basic Law (Cnstitutin). The third assesses these laws against 10 principles internatinally recgnised as necessary fr realising the right f access t infrmatin. Finally, the reprt cncludes with a summary f its findings and recmmendatins t different actrs fr ensuring access t infrmatin in Palestine. Limitatins The reprt des nt cnsider aspects f the right f access t infrmatin ther than thse related t crruptin. This reprt slely examines the legal envirnment fr accessing infrmatin in Palestine and des nt address the implementatin f these laws in practice. AMAN fcuses in this reprt n three laws and ne draft law related t effrts t address crruptin, all f which include partially r fully the right f access t infrmatin. Researchers did nt examine ther laws in detail. Difficulties in accessing infrmatin at times limited research fr this reprt. Definitins Infrmatin All recrds held by a public bdy, regardless f the frm in which the infrmatin is stred, its surce (prduced by the public bdy r anther bdy) and the date f prductin. Classified recrds shuld be subject t the same test as ther recrds. 7 Public bdy The term public bdy fcuses n the type f service prvided rather than the frmal title. It shuld include all branches and levels f gvernment including lcal gvernment, elected bdies, bdies that perate under a statutry mandate, natinalised industries and public crpratins, nn-departmental bdies, judicial bdies, and private bdies which carry ut public functins (such as maintaining rads r perating rail lines). Private bdies themselves shuld als be included if they hld infrmatin whse disclsure is likely t diminish the risk f harm t key public interests, such as the envirnment and health. Inter-gvernmental rganisatins shuld als be subject t access t infrmatin regimes. 8 7 Article 19, The public s right t knw: Principles n freedm f infrmatin legislatin (Lndn: Article 19, 1999), [accessed 22 May 2013], pp As abve, p.3. 6

9 10 principles The 10 principles embdy internatinal standards n access t infrmatin and were develped by Access Inf a human rights rganisatin dedicated t prmting and prtecting the right f access t infrmatin 9 in cnsultatin with internatinal experts. They draw n internatinal standards, cmparative studies n access t infrmatin laws in Eurpean cuntries and the Eurpean Cnventin n Access t Official Dcuments. 10 Exceptins Exceptins t access t infrmatin shuld be exhaustively listed in the access t infrmatin law and subject t a three-part legitimate aim, harm and public interest test. 11 Legitimate aim The law shuld prvide a cmplete list f legitimate aims that justify nn-disclsure. Exceptins shuld be narrwly wrded, based n cntent f infrmatin and nt frm, and shuld be time-limited where apprpriate. 12 Harm test When infrmatin falls within a legitimate aim, the public bdy seeking t exclude the infrmatin shuld shw that disclsure wuld cause substantial harm t the legitimate aim. 13 Public interest test Even where disclsure wuld cause substantial harm t the legitimate aim, infrmatin shuld be weighed against the public interest in disclsing the infrmatin and where the public interest utweighs the harm, infrmatin shuld be made available. 14 Practive disclsure As well as acceding t requests fr infrmatin, public bdies shuld publish and widely disseminate dcuments f significant public interest, subject nly t reasnable limits based n resurces and capacity. Infrmatin published depends n the public bdy cncerned, but laws shuld include a general bligatin t publish and shuld specify key categries f infrmatin that must be published. These shuld include: peratinal infrmatin, infrmatin n requests, cmplaints r ther direct actins, guidance fr public input int prcesses, the type and frm f infrmatin held by the bdy, and the cntent, reasns and backgrund t any decisin r plicy affecting the public Access Inf, [accessed 22 May 2013]. 10 Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins (Madrid: Access Inf, Nvember 2011), p Article 19, 1999, p As abve, p As abve. 14 As abve. 15 As abve, pp

10 Access t Infrmatin Everyne has the right t freedm f pinin and expressin; this right includes the right t hld pinins withut interference and t seek, receive and impart infrmatin and ideas thrugh any media regardless f frntiers. 16 In additin t the Universal Declaratin f Human Rights, the right f access t infrmatin has been included in majr human rights cnventins, including in Article 19 f the Internatinal Cnventin n Civil and Plitical Rights, 17 Article 9 f the African Cnventin n Human and Peples Rights, 18 and Article 32 (1) f the Arab Charter n Human Rights, 19 which states that: The present Charter guarantees the right t infrmatin and t freedm f pinin and expressin, as well as the right t seek, receive and impart infrmatin and ideas thrugh any medium, regardless f gegraphical bundaries. Elabrating n Article 19 f the Internatinal Cvenant n Civil and Plitical Rights, the United Natins Human Rights Cmmittee, which prvides authritative interpretatin f the meaning and applicatin f the cvenant, stated in 2011 that the right f access t infrmatin held by public bdies requires that state parties shuld practively release gvernment infrmatin f public interest, ensure easy, prmpt, effective and practical access t that infrmatin, implement necessary prcedures (such as an access t infrmatin law), prcess requests in a timely manner, ensure fees d nt cnstitute an unreasnable impediment t access, prvide reasns fr refusal, and make available appeals fr a refusal. 20 Taking measures t enhance transparency in public infrmatin, such as adpting and facilitating prcedures t allw public access t infrmatin relating t the rganisatin, functining and decisin-making prcesses f the state, and publishing infrmatin, 21 is required under the UN Cnventin against Crruptin, as is prmting the active participatin f individuals and grups, which can include enhancing transparency and ensuring the public has effective access t infrmatin. 22 Access t infrmatin is a fundatin f demcratic gvernance: 23 Access t infrmatin acts are grunded in the recgnitin that infrmatin in the cntrl f public authrities is a valuable public resurce and that public access t such infrmatin prmtes greater transparency and accuntability f thse public authrities, and that this infrmatin is essential t the demcratic prcess. The purpse f these acts, als knwn as access t infrmatin laws, is t make a gvernment mre pen and accuntable t its peple. In transitinal demcracies, laws that give effect t the right t infrmatin are part f 16 Universal Declaratin n Human Rights 1949, Article Internatinal Cvenant n Civil and Plitical Rights 1966, Article 19 (2): Everyne shall have the right t receive and impart infrmatin. 18 African Charter n Human and Peples Rights 1981, Article 9 (1): Every individual shall have the right t receive infrmatin. 19 Arab Charter n Human Rights 2004, Article UN Human Rights Cmmittee, General Cmment N. 34 n Article 19, CCPR/C/GC/ United Natins Cnventin Against Crruptin 2003, Article 10: [E]ach State Party shall take such measures as may be necessary t enhance transparency in its public administratin Such measures may include (a) Adpting prcedures r regulatins allwing members f the general public t btain, where apprpriate, infrmatin n the rganizatin, functining and decisin-making prcesses f its public administratin and, with due regard fr the prtectin f privacy and persnal data, n decisins and legal acts that cncern members f the public. 22 United Natins Cnventin Against Crruptin 2003, Article 13: Each State Party shall take apprpriate measures t prmte the active participatin f individuals and grups utside the public sectr This participatin shuld be strengthened by such measures as (b) Ensuring that the public has effective access t infrmatin, Transparency Internatinal, United Natins Cnventin Against Crruptin, [accessed 22 May 2013]. 23 Transparency Internatinal, Using the right t infrmatin as an anti-crruptin tl (Berlin: Transparency Internatinal, 2006), p.5. 8

11 the prcess f transfrming a cuntry frm ne with a clsed and authritarian gvernment t ne gverned by and fr the peple. 24 Transparency Internatinal believes that the effective implementatin f an access t infrmatin law is essential fr addressing crruptin. Infrmatin is fundamental t making infrmed decisins. Infrmatin is als pwer. Where it is nt freely accessible, crruptin can thrive and basic rights may nt be realised. Crruptin can be hidden behind a veil f secrecy. Thse with privileged access t infrmatin can demand bribes frm thers seeking such infrmatin. Peple may be denied basic health r educatin services if they lack infrmatin abut their rights. Gvernments can hide their actins by cntrlling r censring the media, preventing essential infrmatin in the public interest frm being reprted. 25 When the right t knw is denied, the public will find it difficult t hld decisin-makers r institutins t accunt fr their actins r t make infrmed electral chices. Withut public infrmatin a culture f empwered citizens infrmed abut their rights is hard t imagine. 26 Mre than 90 cuntries have passed access t infrmatin legislatin ver the past 15 years but implementatin is patchy. Glbal anti-crruptin treaties stress the value f access t infrmatin and gvernments have their wrk cut ut fr them t ensure that peple can effectively enjy their right t knw As abve. 25 Transparency Internatinal, Access t infrmatin, [accessed 22 May 2013]. 26 As abve. 27 As abve. 9

12 Access t Infrmatin in Palestine Basic Law The 2002 Basic Law is the de fact cnstitutin f Palestine, prviding principles and rules gverning the functining f the Palestinian Authrity. Other laws must cmply with the Basic Law. The Basic Law des nt guarantee the right f access t infrmatin and the curts have nt read this right int the Basic Law. Other rights under the Basic Law cver sme aspects f the right f access t infrmatin: Article 19 f the Basic Law stipulates that, Freedm f pinin may nt be prejudiced. Every persn shall have the right t express his pinin and circulate it rally, in writing r in any frm f expressin r art, with due cnsideratin t the prvisins f the law. Article 54 bliges the members f the Palestinian Legislative Cuncil t submit asset declaratins fr themselves, their children and their spuses. Article 80 requires the prime minister and ther ministers t submit financial and asset declaratins fr themselves and their families. Palestine nly became eligible t sign internatinal human rights treaties upn its recgnitin as a United Natins bserver state in December 2012; hwever, the Palestinian Authrity has cmmitted itself t respecting internatinal human rights standards including the right f access t infrmatin. 28 Access t infrmatin law The Legislative Cuncil (parliament) has yet t issue a law n the right f access t infrmatin. Civil sciety rganisatins, rganised and crdinated by AMAN, drafted a bill n access t infrmatin in Cuncil member Abdul-Fattah Hamayil was a participant in discussin sessins n this draft law and civil sciety rganisatins persuaded him t submit the draft t the Legislative Cuncil, als in The Legislative Cuncil apprved the draft law in a General Assembly debate n 5 April 2005; hwever, it did nt cmplete all the necessary steps fr enactment befre the Legislative Cuncil s 2007 suspensin. The draft law s definitin f infrmatin includes written, electrnic and audi-visual dcumentatin. An infrmatin cmmissiner can expand the scpe f this definitin (Article 1). The law aims t enable citizens and thse resident in Palestine t exercise the right f access t infrmatin held by public bdies (Article 2), and deems all infrmatin in the pssessin f public bdies t be accessible, unless included within the scpe f an exceptin (Article 3). It sets ut mechanisms fr ding s; each public bdy is required t appint an fficial cmpetent t cnsider and fulfil infrmatin requests (Article 4) and the law requires public bdies t prvide training fr staff n the right f access t infrmatin (Article 6). The law als creates a general cmmissiner fr infrmatin, wh acts as the appellate bdy fr all access t infrmatin requests and is respnsible fr ensuring public bdy cmpliance with the law (Article 30). Exceptins t access in the law can 28 Under the Barcelna Declaratin f Nvember 1995, the Palestinian Authrity undertk t act in accrdance with the United Natins Charter and the Universal Declaratin f Human Rights. Barcelna Declaratin adpted at the Eur- Mediterranean Cnference, Nvember 1995, [accessed 15 April 2013]. 29 The draft law was debated by the Legislative Cuncil in the first perid f its tenth term (first sessin/ third meeting), cnvened in the cities f Ramallah and Gaza n 5 April At this sessin Member Abdul-Fattah Hamayil presented the draft access t infrmatin law (N. 188/2005/ A), which was subject t a general debate. The Legislative Cuncil issued Reslutin N. 844/1/10 n the Acceptance f the Draft Access t Infrmatin Law. The Legislative Cuncil referred the draft law t the relevant cmmittees (Legal, Public Oversight, Human Rights) fr cnsideratin in light f the general debate cnducted by the Cuncil, prir t its first reading. 10

13 be either discretinary r mandatry (Articles 19 28). Mandatry exceptins t disclsure include infrmatin that may affect defence and natinal security (Article 19), prfessinal secrets (Article 24) and the right t a private life (Article 28). 30 Other relevant laws A number f ther laws prvide sme level f access t infrmatin, including a number that include a right f access t infrmatin. Hwever, nne f these prvide a general right f access t infrmatin with mechanisms and scpe in cmpliance with internatinal standards. AMAN includes these laws in this reprt as each either prvides a right f access t infrmatin r requires public bdies t disclse infrmatin. As such, they principally frm the legal basis fr the right f access t infrmatin in Palestine. Laws including the right f access t infrmatin Press and Publicatin Law 9/1995 The 1995 Press and Publicatin Law establishes the rules relating t licensing, wnership and management f publishing enterprises, and restrictins n the cntent f publicatins. 31 The law includes a general right fr citizens f access t infrmatin frm public bdies (Article 4), requires public bdies t assist jurnalists and researchers (Article 6) and defines material that cannt be published n the grunds f freedm, natinal respnsibility, human rights and respect f the truth (Article 7) and n cntent, including material harmful t natinal unity r which is incnsistent with mrals (Article 37). Envirnment Law 7/1999 The Envirnment Law 32 aims t regulate pllutin, prtect public health, address envirnmental and bidiversity prtectin, and encurage the cllectin and publicatin f envirnment-related infrmatin (Article 2). Under this law, any persn may als btain any necessary fficial infrmatin t discver the envirnmental impact f any industrial, agricultural, cnstructin r ther activity within the develpment prgrams, in cmpliance with the law (Article 3). Public Statistics Law 4/2000 The Public Statistics Law 33 creates a statistics bureau (Article 2) t establish a unified and cmprehensive statistics system fr Palestine (Article 3). Under this law, all persns have the right t btain fficial statistics cllected, prcessed, and disseminated by the Bureau in accrdance with the adpted rules and instructins, taking int cnsideratin the hnuring f data cnfidentiality and individuals' privacy (Article 4). Laws requiring practive disclsure Law n the Regulatin f the Public Budget 7/1998 This law requires ministries t prvide budgetary-related infrmatin t the Public Budget Directrate (Article 24). It requires this bdy t disseminate the public budget t the media 30 Article 19, Memrandum n a prpsal fr a draft Law n Access t Infrmatin f Palestine (Lndn: Article 19, 2005) [accessed 15 April 2013], p Article 19 and the Centre fr Media Freedm in the Middle East and Nrth Africa, Memrandum n the 1995 Press Law f the Palestinian Natinal Authrity (Lndn: Article 19 and the Centre fr Media Freedm, 1999), pp Fd and Agriculture Organisatin s FAOLEX: Palestinian Envirnmental Law, g%2fdcs%2ftexts%2fpal40426e.dc&ei=nf14uazxi4x2sgbskycaaq&usg=afqjcnf7fsebde6idwfxxyfcsb1l2fdijg& bvm=bv ,d.yms [accessed 25 April 2013] 33 UNSTATS, General Statistics Law N. (5) fr Year 2000, [accessed 25 April 2013]. 11

14 and public fllwing Palestinian Legislative Cuncil apprval (Article 38). It als requires the Ministry f Finance t prepare and the minister t present t the cabinet and parliament, quarterly reprts assessing cmpliance with the budget, including significant deviatins (Article 52). The law further requires ministers t publish their decrees regarding terms f lans and transactin guarantees in the fficial gazette (Article 58). Other than in Article 58, there is n requirement t publish infrmatin. Law n the Financial and Administrative Oversight Bureau 15/2004 This law gives the Finance and Administrative Oversight Bureau the authrity t view all reprts, data and infrmatin held by the civil service and reprts f investigatins int financial and administrative law vilatins (Article 25). It als allws the bureau t request, access and preserve any infrmatin frm public bdies, including infrmatin the public bdy deems cnfidential (Article 29). The chair f the bureau is required t submit quarterly and annual reprts t the president, cabinet and parliament n its activities, findings and bservatins (Article 8 and 26). Nthing in the law requires the bureau t publish infrmatin. Law fr the Electin f Lcal Cuncils 10/2005 This law requires the Central Electins Cmmissin t publish the vter rlls and names f lists and candidates in each district and plling statin (Articles 11, 21 and 36). Electins Law 9/2005 This law requires district ffices t publish their vter rlls and the Central Electin Cmmissin t publish the list f candidates fr president (Articles 41 and 45). The final results shall be published in the fficial gazette and daily lcal newspapers (Article 96). Anti-Crruptin (Amended) Law 1/2005 The Anti-Crruptin Agency under this law has the pwer t cllect infrmatin related t crruptin, t create a database and infrmatin systems n crruptin cases and t crdinate with the media in creating a culture f integrity and anti-crruptin (Articles 8-9). 12

15 Legal analysis f access t infrmatin The fllwing 10 access t infrmatin principles, 34 develped by Access Inf a human rights rganisatin dedicated t prmting and prtecting the right f access t infrmatin 35 in cnsultatin with internatinal experts, draw n internatinal standards, cmparative studies n access t infrmatin laws in Eurpean cuntries and the Eurpean Cnventin n Access t Official Dcuments. 36 TABLE 2: Principles ACCESS TO INFORMATION PRINCIPLES Everyne has a right, withut discriminatin, t access infrmatin held by public bdies. 2. Filing requests shuld be simple and free. Requests can be sent by pst, r fax, delivered in persn, r questins asked verbally. 3. There is n need t justify why infrmatin is needed r what will be dne with it. 4. Public fficials shuld have the bligatin t help requestrs prepare the request r identify the public bdy t send it t. 5. Respnses shuld be fast, within a maximum 15 wrking day timeframe. 6. Infrmatin can be accessed in paper cpy r electrnically, and riginals can be viewed. 7. Viewing riginals is always free f charge. The nly charges can be fr phtcpying r cpying material nt a CD r DVD r ther frmat. 8. In principle all infrmatin is accessible, subject t limited exceptins. Refusals shuld be justified accrding t the exceptins. 9. Everyne shuld have the right f appeal against refusals r against administrative silence t an independent bdy and t the curt. 10. Public bdies shuld make available autmatically the main infrmatin abut their structure, functins, budget, and activities. In this sectin, AMAN analyses the Envirnment Law, the Press Law, the Statistics Law and the Draft Access t Infrmatin Law against the 10 principles listed abve t determine the extent t which these laws already prvide access t infrmatin and hw far the draft law ges in setting-ut the legal basis fr this right. AMAN selected these particular laws due t their relevance in the fight against crruptin and because each f them includes a right fr either a citizen r individual t access infrmatin. AMAN fund that while each f the three laws include the right f access t infrmatin, nne f them includes the mechanisms and prcedures necessary t give effect t this right in practice. AMAN als fund that while the draft access t infrmatin law is a psitive step frward, it t fails t cmply fully with internatinal standards. 34 Access Inf Cyprus, Principles fr an Open Cyprus, [accessed 8 March 2013]. 35 Access Inf, [accessed 8 March 2013]. 36 Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins, p Access Inf Cyprus, Principles fr an Open Cyprus. 13

16 TABLE 3: Names f the fur laws FULL NAME Prpsed Palestinian Access t Infrmatin Law Press and Publicatin Law N. 9 f 1995 Envirnment Law N. 7 f 1999 Palestinian Public Statistics Law N. 2 f 2000 SHORT NAME Draft ATI Law Press Law Envirnment Law Statistics Law 14

17 Principle 1 Everyne has a right, withut discriminatin, t access infrmatin held by public bdies This principle establishes, in line with internatinal standards, that everyne has the right t access infrmatin held by public bdies withut discriminatin n the grunds f ethnicity, natinality, plitical pinin, scial r prfessinal status, age, gender, disability, r sexual rientatin. 38 TABLE 4: Principle 1 Wh may ( ) and may nt ( ) access infrmatin under the fur laws, als indicated is where it is unclear ( ). WHO MAY ACCESS DRAFT ATI LAW PRESS LAW ENVIRONMENT LAW STATISTICS LAW ALL (INCLUDING FOREIGNERS) CITIZENS AFFECTED PERSONS / DATA SUBJECT ANYONE WITH JUSTIFIED INTERESTS JOURNALISTS RESEARCHERS With the exceptin f the Statistics Law, all laws analysed include a clear right f access t infrmatin fr citizens r fr everyne. Article 2 f the Draft ATI Law limits the right f access t infrmatin t citizens and residents f Palestine. 39 Article 4 f the Press Law includes the right f jurnalists t access facts, ideas, mvements, and infrmatin at the lcal, Arab, Islamic, and internatinal levels. It als allws citizens t publish pinins and research, and t analyse, circulate, publish, and cmment n infrmatin, news and statistics within the bunds f the law. Article 3 f the Envirnment Law states that every persn may als btain any necessary fficial infrmatin t discver the envirnmental impact f any industrial, agricultural, cnstructinal r ther activity within the develpment prgrams, in cmpliance with the law. The article des nt explicitly state that persns have a right f access t infrmatin frm public bdies, but the wrd fficial infrmatin implies that the infrmatin is held by public bdies. Under Article 4 f the Statistics Law all persns have the right t btain fficial statistics cllected, prcessed, and disseminated by the Bureau in accrdance with the adpted rules and instructins, taking int cnsideratin the hnuring f data cnfidentiality and individuals' privacy. 40 The clause stating and disseminated by the Bureau indicates that the right might be limited t access t infrmatin already publically disclsed by the statistics bureau. 38 Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins, p.43, and partially expanded. 39 Article 19, 2005, p.9 40 UNSTATS, General Statistics Law N. (5) fr Year 2000, Article 4. 15

18 Principle 2 Filing requests shuld be simple and free. Requests can be sent by pst, r fax, delivered in persn, r questins asked verbally This principle establishes that the frmalities f a request shuld nt exceed what is essential fr prcessing the request, the prcedure shuld be as simple as pssible and that a variety f methds fr accessing infrmatin shuld be permitted. 41 TABLE 5: Principle 2 Included frms f access ( ) and nn-included frms f access ( ) under the fur laws, and where it is unclear ( ). FORM OF ACCESS DRAFT ATI LAW PRESS LAW ENVIRONMENT LAW STATISTICS LAW POST FAX IN PERSON VERBALLY IS FILING FREE OF CHARGE? Nne f the laws analysed cmplies with Principle 2. All fur in general lack the detail necessary fr petitiners t understand clearly hw t make an infrmatin request. Article 11 f the Draft ATI Law requires persns t submit their requests in writing. 42 The law des nt mentin charges fr filing a request r whether petitiners can r shuld submit the request by pst, , fax r in persn. Nne f the ther laws include prvisins n either hw t make an infrmatin request r whether public bdies can r must charge fees fr filing a request. 41 Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins, p Article 19, 2005, p

19 Principle 3 There is n need t justify why infrmatin is requested r what will be dne with it This principle establishes that the petitiner shuld nt be required t shw any persnal interest r be required t give a reasn r justificatin fr asking fr the infrmatin, r give an accunt f what he r she will d with the infrmatin, in exercising the right f access t infrmatin. 43 TABLE 6: Principle 3 N duty t justify ( ) and justificatins required ( ) under the fur laws, and where it is unclear ( ). DRAFT ATI LAW PRESS LAW ENVIRONMENT LAW STATISTICS LAW NO DUTY TO JUSTIFY REQUESTS Nne f the laws explicitly requires petitiners t justify requests; hwever, the Envirnment Law may cntain an implicit duty t d s. The use f the term necessary fficial infrmatin in Article 3 f the Envirnment Law implies that there may be a duty n petitiners t justify why their request is necessary t public bdies. N explicit prvisin n justificatin exists in the law. The Draft ATI, Statistics and the Press Laws d nt require petitiners t justify a request fr infrmatin. 43 Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins, p

20 Principle 4 Public fficials shuld have the bligatin t help petitiners prepare the request r identify the public bdy t send it t This principle establishes that public authrities must help applicants as far as is reasnably pssible t identify the requested fficial dcument and that if the public authrity requested des nt hld the dcument r is nt authrised t prcess the request, it must refer the applicant t the cmpetent public authrity. 44 TABLE 7: Principle 4 Duty t assist petitiners ( ) and n duty t assist ( ) under the fur laws, and where it is unclear ( ). DRAFT ATI LAW PRESS LAW ENVIRONMENT LAW STATISTICS LAW DUTY TO ASSIST PETITIONERS Nne f the laws cntains an explicit duty t assist petitiners. The Draft ATI Law cntains prvisins that may encmpass a limited duty f assistance. Under Article 17 f the Draft ATI Law, public bdies may refer a request t anther institutin if that institutin is mre relevant in prviding the infrmatin. Article 19 indicates that this has the ptential fr abuse by allwing public bdies t pass requests frm ne public bdy t anther. They suggest a better frmulatin wuld be t allw referrals nly when the public bdy des nt hld the infrmatin. 45 Article 6 f the Press Law bliges public bdies t facilitate the review f their prgrammes and prjects by jurnalists and researchers. This des nt cmply with internatinal standards, which require public bdies t assist all petitiners as far as reasnably pssible t identify requested dcuments and the relevant public bdy. Neither the Envirnment nr the Statistics Law cntains any prvisins requiring public bdies t assist petitiners in making an access t infrmatin request. 44 Access Inf, The right f access t infrmatin in Cyprus: Open Cyprus prject, p Article 19, 2005, p

21 Principle 5 Respnses shuld be fast, within a maximum 15 wrking day timeframe The principle cmes frm the Cuncil f Eurpe s Cnventin n Access t Official Dcuments that states that a request fr access t infrmatin shall be dealt with prmptly and frm Eurpean states practice f respnding t requests, n average, in under 15 days. 46 TABLE 8: Principle 5 Infrmatin must be prvided within the specified timeframe ( ) and n timeframe ( ) under the fur laws, and where it is unclear ( ). TYPE OF RESPONSE DRAFT ATI LAW PRESS LAW ENVIRONMENT LAW STATISTICS LAW INITIAL RESPONSE (MAX. 15 WORKING DAYS RECOMMENDED) EXTENSION (MAX. 20 WORKING DAYS RECOMMENDED) Only the Draft ATI Law includes specific time limits fr respnding t access t infrmatin requests. Article 13 f the Draft ATI Law requires public bdies t respnd within 15 days t a request. Public bdies can extend this by a further 15 days where the request requires cllecting a large amunt f infrmatin, r cnsultatin with a third party r anther public bdy. Article 19 indicates that the law is unclear n whether this refers t calendar r wrking days. 47 The Press, Envirnment and Statistics Laws d nt include time limits fr respnding t requests. 46 Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins, p Article 19, 2005, p

22 Principle 6 Infrmatin can be accessed in paper cpy r electrnically, and riginals can be viewed This principle states that petitiners shuld bth have access t riginal versins f dcuments and that cpies must always be prvided, either n paper r electrnically. The Cuncil f Eurpe Cnventin n Access t Official Dcuments additinally states that the infrmatin must be prvided in the frmat (electrnically r n paper) the petitiner asks fr. 48 TABLE 9: Principle 6 Infrmatin is available ( ) and nt available ( ) in the specified frmats under the fur laws, and where it is unclear ( ). SPECIFIED FORMAT DRAFT ATI LAW PRESS LAW ENVIRONMENT LAW STATISTICS LAW VIEWING PAPER COPIES ELECTRONIC ACCESS Nne f the laws analysed is clear n the frmat in which public bdies can r shuld prvide infrmatin. Article 14 f the Draft ATI Law states that the public bdy shuld prvide the infrmatin in the frmat in which the institutin keeps it. In case f dispute, it prvides that the infrmatin cmmissiner shuld decide n the frm f access. It als states that public bdies shuld prvide infrmatin in a frmat accessible t persns with disabilities, but if this invlves extra expense, that the petitiner must cver the cst. 49 The article des nt specify that petitiners have an autmatic right t btain paper cpies r electrnic access frm public bdies r that they have a right t view riginals. The Press, Envirnment and Statistics Laws d nt state the frm in which public bdies shuld prvide infrmatin. 48 Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins, pp Article 19, 2005, pp.13,

23 Principle 7 Viewing riginals is always free f charge. The nly charges can be fr phtcpying r cpying material nt a CD r DVD r ther frmat This principle states that n-site inspectin f fficial dcuments must be free f charge (except fr minr charges t enter public archives and museums) and that charges fr cpies must be reasnable and nt t make a prfit. 50 TABLE 10: Principle 7 A fee is nt charged ( ) and is charged ( ) fr the specified frmats under the fur laws, and where it is unclear ( ). NO FEE CHARGED DRAFT ATI LAW PRESS LAW ENVIRONMENT LAW STATISTICS LAW VIEWING PAPER COPIES ELECTRONIC ACCESS The three laws are nt clear n whether public bdies can r must charge a fee fr access t infrmatin. The Draft ATI Law requires the public bdy t set a fee, which can be higher than the cst f prviding the infrmatin. Article 14 f the Draft ATI Law requires the public bdy t set a fee fr access t infrmatin. Article 42 states that the infrmatin cmmissiner shall set ut a fee schedule but fees shuld nt exceed 10 Jrdanian dinars. As Article 19 indicates, fees shuld nt exceed the actual cst f prviding the infrmatin. 51 The Press, Envirnment and Statistics Laws d nt state if public bdies shuld r can charge fees fr access t infrmatin. 50 Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins, p Article 19, 2005, pp.15,

24 Principle 8 In principle, all infrmatin is accessible, subject t limited exceptins. Refusals shuld be justified accrding t exceptins TABLE 11: Principle 8 Exceptins in cmpliance with internatinal standards ( ) and nt in cmpliance ( ) under the fur laws, and where it is unclear ( ). EXCEPTIONS LIMITED REFUSALS JUSTIFIED DRAFT ATI LAW PRESS LAW ENVIRONMENT LAW STATISTICS LAW HARM TEST PUBLIC INTEREST TEST Only the Statistics Law limits exceptins t infrmatin requests. The Draft ATI Law cntains brad exceptins, while the Press and Envirnment Laws d nt have clear exceptins t prviding access t infrmatin. Under the Draft ATI Law, public bdies d nt have t justify refusals with sufficient precisin; ther laws are either nt clear r d nt specify whether the public bdy must justify denials f infrmatin requests. Nne f the laws includes the harm r public interest tests. Under the Draft ATI Law exceptins are nt limited, refusals have t be justified but leave scpe fr manipulatin, and there is n harm r public interest test. Articles 19 and 20 include mandatry exceptins n the grunds that prviding infrmatin that may affect defence capabilities and natinal security r that it is related t a freign state r rganisatin and is agreed with them as being cnfidential. The exceptins are nly applicable t infrmatin less than 20 years ld, unless the infrmatin cmmissiner determines lder infrmatin shuld remain cnfidential. Articles 24 and 28 include mandatry exceptins withut time limitatins fr prfessinal secrets and the right t a private life. 52 Public bdies can make discretinary exceptins n the grunds that infrmatin: may cause damage t n-ging plice investigatins r wuld harm the reputatin f nn-cnvicted persns (Article 22) 53 cntains cmmercial r prfessinal secrets which may inflict material damage r the ability t manage the natinal ecnmy (Article 23) 54 relates t public bdies internal affairs, rders, emplyees, discussins and preliminary prpsals and suggestins (Article 25) 55 relates t uncnfirmed indicatins f natural disasters r f nn-epidemic utbreaks f cntagius diseases (Article 26) 56 might affect r inflict damage t the safety f individuals (Article 27) Article 19, 2005, pp Article 19, 2005, p As abve. 55 As abve. 56 As abve. 22

25 Article 14 gives the public bdy a discretinary pwer t release partial infrmatin if an exceptin cvers part f a dcument. 58 Article 19 cnsiders Article 25 particularly prblematic, as it allws public bdies t restrict access t infrmatin n their expenses regarding issues such as freign trips and hspitality. While refusals have t be justified under the law (Article 18), Article 19 pints ut that the prvisin is nt clear enugh that public bdies must give detailed reasns and that they cannt slely state either that they d nt have the infrmatin r that it falls within the scpe f exceptins. 59 The Press Law des nt include any express limitatins t the disclsure f infrmatin by public bdies. Hwever, Articles 7 and 37 set ut material that the press cannt publish in print and therefre may act as a barrier t disclsure by public authrities. These include cnfidential material abut the plice r general security frces, articles likely t harm natinal unity, and secret prceedings f the Natinal Cuncil and cabinet. There is n harm r public interest test. The Envirnment Law des nt include any details n exceptins t disclsure f infrmatin. The Statistics Law requires public bdies t restrict infrmatin whenever it relates t the right t privacy r when it cntains individual infrmatin prvided fr statistical purpses (Articles 16 and 17). Public bdies can release individual data prvided fr statistical purpses under Article 18, whenever it relates t a gvernment department, when a legal rgan has already published the data, r where the cncerned party agrees t the release in writing. There is n harm r public interest test. 57 As abve. 58 Article 19, 2005, p Article 19, 2005, pp.11,

26 Principle 9 Everyne shuld have the right f appeal against refusals r against administrative silence t an independent bdy and t the curt The right t appeal when a public bdy denies a petitiner his r her right f access t infrmatin r when infrmatin is nt published practively is in line with the principle that all human rights shuld benefit frm the prtectin f the judicial system. This right t appeal shuld be accessible t all members f the public; it shuld nt be verly cmplex r cstly. Additinally, it shuld be rapid t be effective, as infrmatin can lse its value with the passing f time. 60 TABLE 12: Principle 9 Frms f appeal allwed ( ) and nt allwed ( ) under the fur laws, and where it is unclear ( ). MECHANISM DRAFT ATI LAW PRESS LAW ENVIRONMENT LAW STATISTICS LAW ADMINISTRATIVE APPEAL ALLOWED APPEAL TO INDEPENDENT BODY ALLOWED (E.G. INFORMATION COMMISSIONER) APPEAL TO THE COURTS ALLOWED Only the Draft ATI Law has clear prcedures fr appealing denial f a request fr access t infrmatin. Under Article 32 f the Draft ATI Law, petitiners can submit an appeal t the infrmatin cmmissiner n the grunds that: a public bdy has denied a request fr infrmatin a public bdy has charged an unlawful fee a public bdy has rejected prviding infrmatin in an alternative frmat a public bdy has unlawfully exceed the time limit fr respnse a public bdy has referred the request t mre than ne ther institutin Petitiners have 30 days t submit an appeal and the infrmatin cmmissiner must respnd t a cmplaint within three mnths f receipt. The law des nt include a right fr petitiners t appeal the infrmatin cmmissiner s decisin t a curt f law. 61 The Press, Envirnment and Statistics Laws d nt include mechanisms fr appealing administrative denial f r lack f respnse (silence) t infrmatin requests. 60 Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins, p Article 19, 2005, pp.17,18. 24

27 Principle 10 Public bdies shuld make available autmatically the main infrmatin abut their structures, functins, budget and activities Under internatinal standards, public bdies have the duty t practively make infrmatin public. TABLE 13: Principle 10 Infrmatin prvided ( ) and nt prvided ( ) practively under ministries mst clsely assciated with the fur laws, and where it is unclear ( ). CLASSES OF INFORMATION MINISTRY OF SOCIAL AFFAIRS MINISTRY OF HEALTH PALESTINIAN CENTRAL BUREAU OF STATISTICS IS THERE A WEBSITE? ARE THERE INTERNAL REGULATIONS ON PUBLISHING INFORMATION? IS THE ORGANISATIONAL STRUCTURE PUBLISHED? IS CONTACT INFORMATION PUBLISHED? IS OPERATIONAL INFORMATION PUBLISHED? ARE DECISIONS AND POLICIES PUBLISHED? IS DECISION-MAKING INFORMATION PUBLISHED? ARE EVALUATIONS (E.G. SITUATION EVALUATIONS) PUBLISHED? ARE MEETING MINUTES PUBLISHED? IS INFORMATION ON SERVICES PUBLISHED? IS THERE E-ACCESS TO SERVICES? IS THE PROJECTED BUDGET PUBLISHED? IS SALARY INFORMATION PUBLISHED? IS INCOME AND EXPENDITURE PUBLISHED? ARE SUBSIDIES INFORMATION PUBLISHED? IS INFORMATION ON OPEN MEETINGS PUBLISHED? ARE GUIDELINES ON PUBLIC PARTICIPATION PUBLISHED? IS INFORMATION ON PUBLIC PROCUREMENT PUBLISHED? IS CONTRACTS INFORMATION PUBLISHED? ARE REGISTERS AND DATABASES PUBLISHED? IS INFORMATION ON INFORMATION HELD BY THE PUBLIC BODY PUBLISHED? DOES THE PUBLIC BODY PUBLICLY STATE THERE IS 25

28 RIGHT TO INFORMATION? IS ENVIRONMENTAL INFORMATION PUBLISHED? In general, public bdies under this law nly practively publish infrmatin relating t their structure, cntacts, services and guidelines fr public participatin in the wrk f the public bdy. Public bdies surveyed did nt practively publish infrmatin n budgets, salaries, incme and expenditure. Under the three laws and ne draft law analysed, nly the Draft ATI law requires public bdies t practively disclse infrmatin. Article 7 f the Draft ATI Law requires public bdies t publish annual reprts cntaining: dcuments n internal matters such as audited accunts regulatins and activities prcedures by which individuals can find ut abut the institutin s plicies and prjects an explanatin f the types f infrmatin kept by the institutin cntents f decisins made by the institutin any infrmatin the infrmatin cmmissiner deems necessary Article 8 requires public and private industrial institutins t publish semi-annual reprts cntaining infrmatin n the lcatin, nature, and assciated hazards f txic materials they use, the vlume f materials released int the envirnment as a result f their manufacturing prcesses, and waste dispsal methds and mechanisms they use. Article 9 requires any public institutin that wishes t hld a general meeting t annunce the lcatin, time and bjective f the meeting and pen it t the public. 62 Article 19 indicates that legislatrs need t clarify in the law when public bdies shuld hld pen meetings and when they can hld clsed meetings. 63 The Press, Envirnment and Statistics Laws d nt require public bdies t practively disclse infrmatin. 62 Article 19, 2005, pp.10, As abve, p

29 Cnclusins Access t infrmatin is a human right that the Palestinian Authrity has cmmitted t recgnise. Palestine s Basic Law (Cnstitutin) des nt yet include this right and the Palestinian Authrity has nt passed a general access t infrmatin law. A limited number f existing laws d include a right f access t infrmatin, but thse laws d nt substantively cmply with internatinal standards in this field. The three laws AMAN analysed in this study partially fulfil Principles 1 and 3 stating, respectively, that all persns shuld have access t infrmatin and that requests shuld nt require justificatin. Bth the Press and Envirnment Laws allw fr access t infrmatin either fr citizens r fr everyne, while the Statistics Law is unclear (Principle 1). Bth the Press and Statistics Laws d nt include duties t justify requests, while the Envirnment Law is unclear n this issue (Principle 3). Fr the majrity f the principles, hwever, the three laws either d nt meet these standards r remain unclear. All three laws are unclear n hw petitiners shuld submit a request (Principle 2), n the frmat public authrities shuld prvide infrmatin (Principle 6) and n whether public bdies shuld r can charge a fee (Principle 7). Nne f the three laws includes a duty n the public authrity t assist petitiners (Principle 4), nr d they include mandatry respnse times fr requests (Principle 5). Appeal prcesses fr refusals and silence (Principle 9) are lacking in all three laws, as are bligatins n public authrities t practively disclse certain frms f infrmatin (Principle 10). Exceptins t disclsure are nly listed under the Statistics Law and nne f the laws requires public bdies t justify refusals r include the harm and public interest tests (Principle 8). The draft access t infrmatin law prvides a starting pint fr the realisatin f this right thrugh generalised rules abut access t infrmatin. The Palestinian Authrity shuld wrk with civil sciety t revise the draft law t ensure it fully cmplies with all 10 principles. As it stands, the draft law cmplies with the principles n public bdies nt requiring justificatin fr requests (Principle 3) and n time limits fr respnding t requests (Principle 5). It als cmplies substantively with the principle stating that all persns shuld have the right t access infrmatin (Principle 1), but des nt apply t nn-resident nn-citizens. The Palestinian Authrity shuld mre clearly extend this right t all persns, and establish clear appeal rutes fr denials f access, including administrative appeals (Principle 9). The draft law des nt meet the internatinal standards the remaining principles psit. Prcedures fr requesting infrmatin are nt sufficiently clear and d nt allw verbal requests (Principle 2). The law des nt establish a clear duty n public bdies t assist petitiners (Principle 4) r specify the frmat in which public bdies shuld prvide infrmatin (Principle 6). Furthermre, the draft law gives scpe fr public bdies t set fees in excess f the cst f the cpy (Principle 7), allws fr brad exceptins withut requiring public bdies t give reasns r perfrm the harm and public interest tests (Principle 8) and des nt blige public authrities t practively disclse detailed financial infrmatin (Principle 10). This analysis demnstrates that access t infrmatin remains limited in Palestine and will remain s as lng as the Palestinian Authrity des nt include the right f access t infrmatin in the Basic Law and des nt pass a general access t infrmatin law cmpliant with internatinal standards. The Draft Access t Infrmatin Law prvides a basis fr ding s, but the Palestinian Authrity shuld revise it t ensure its full cmpliance with the 10 principles. 27

30 Recmmendatins Based n the findings f this reprt, AMAN makes the fllwing recmmendatins fr addressing crruptin thrugh access t infrmatin. T the gvernment The Palestinian Authrity shuld strengthen the draft access t infrmatin law by: 64 Extending the right f access t every persn Mre clearly defining the public bdies cvered by the law and cnsidering including private bdies whenever necessary t enfrce a right Allwing requests fr access t be made by r verbally, as well as in writing, and requiring public bdies t prvide reasnable assistance t applicants, in particular fr thse less well able t ldge a request in a specified frm Including a prvisin that fees shuld nt exceed the actual cst f prviding the infrmatin and that public bdies shuld prvide a certain amunt f material fr free Mdifying the timeframe t require the public bdy t respnd as sn as pssible, within a maximum f 15 wrking days, which public bdies can nly extend if the request requires a large amunt f dcuments, an extensive search r cmplying within the timeframe wuld unreasnably interfere with the wrk f the institutin Only allwing a public bdy t refer a petitiner t anther institutin when it des nt hld the infrmatin Mre narrwly and precisely defining exceptins and requiring public bdies t grant partial access t infrmatin nt falling under an exceptin Requiring public bdies t give full reasns fr a refusal Only allwing public bdies t refuse disclsure when it wuld cause substantial harm t a legitimate prtected interest and including a public interest verride, fr when public interest in disclsure utweighs the harm t the prtect interest Mre clearly defining the rle f the cmmissiner in receiving cmplaints, including minimal prcedural prvisins, and explicitly stating that the cmmissiners decisins are subject t appeal t the curts Clarifying which rganisatins are subject t the pen meeting requirement, clearly listing exceptins t this principle, ensuring public bdies make public any decisin t clse a meeting and allwing persns t challenge this decisin Extending the practive disclsure requirements t include infrmatin n access prcedures, including n hw t cmplain abut vilatins f access t infrmatin, infrmatin relating t imminent envirnmental threats r disasters, infrmatin regarding the way members f the public can make representatins r therwise influence plicies, and annual statistics n infrmatin released, including n requests received, refused and granted 64 Taken frm Article 19, 2005, pp

31 After revising the Draft ATI Law and cnsulting with civil sciety, as the Palestinian Legislative Cuncil is currently inperative, the president f the Palestinian Authrity shuld issue the law. As part f this prcess, the gvernment shuld review all Palestinian laws and regulatins that bstruct the applicatin f the right f access t infrmatin and remve incmpatible prvisins. The president shuld instruct all public bdies t facilitate access t infrmatin and t prvide training fr public fficials n the right f access t infrmatin. The Palestinian Authrity shuld prepare and disseminate a public infrmatin guide n prcedures fr requesting infrmatin frm fficial bdies and mechanisms available fr enfrcing the respnse. T the private sectr Cmpany bards f directrs shuld cmmit t the publicatin f transparent reprting n their peratins. T civil sciety Civil sciety rganisatins shuld cmmit t raising awareness f the right f access t infrmatin and t supprting individuals access t infrmatin requests. Civil sciety rganisatins shuld participate in gvernment effrts t strengthen the draft access t infrmatin law and test its implementatin nce passed. 29

32 References Reprts and studies Access Inf Eurpe, KAB and IKME, Access Inf Cyprus Reprt & Recmmendatins (Madrid: Access Inf, Nvember 2011). Article 19 and the Centre fr Media Freedm in the Middle East and Nrth Africa, Memrandum n the 1995 Press Law f the Palestinian Natinal Authrity (Lndn: Article 19 and the Centre fr Media Freedm, 1999). Article 19, The public s right t knw: Principles n freedm f infrmatin legislatin (Lndn: Article 19, 1999). Said Almadhun, Access t infrmatin in the Middle East and Nrth Africa Regin: An verview f recent develpments in Jrdan, Lebann, Mrcc and Tunisia (Washingtn DC: Wrld Bank Institute, 2012). Transparency Internatinal, Using the right t infrmatin as an anti-crruptin tl (Berlin: Transparency Internatinal, 2006). Peridicals and press releases Centre fr Law and Demcracy, Yemen passes strngest RTI Law in the Arab Wrld, 10 June Freedminf.rg, Tunisia issues decree n access t dcuments, 11 July Said Almadhun, Status f freedm f infrmatin legislatin in the Arab wrld 2010, Open Sciety Justice Initiative, 6 February Websites Access Inf, Principles fr an Open Cyprus, Business Anti-Crruptin Prtal, Jrdan Cuntry Prfile - Public Anti-Crruptin Initiatives, Fd and Agriculture Organisatin s FAOLEX: Palestinian Envirnmental Law, ttp%3a%2f%2ffalex.fa.rg%2fdcs%2ftexts%2fpal40426e.dc&ei=nf14uazxi4x2sgbsk YCAAQ&usg=AFQjCNF7fSebDe6IDWFXXYfcSb1l2FDiJg&bvm=bv ,d.Yms. Transparency Internatinal, Access t Infrmatin, Transparency Internatinal, The right t access infrmatin, t_infrmatin. Transparency Internatinal, United Natins Cnventin Against Crruptin, ventins/uncac. 30

33 Annex I: Overall Cmpliance Overall cmpliance Table prviding narrative infrmatin n verall cmpliance f each f the fur laws with the 10 ATI principles PRINCIPLE NARRATIVE Principle One: Nndiscriminatin in accessing public infrmatin Principle Tw: Free requests, by pst, e- mail, fax, pst r verbally Principle Three: N need t justify requests Principle Fur: Obligatin t help petitiners Principle Five: Timely respnses Principle Six: Paper r electrnic cpies available, access t riginals Principle Seven: Viewing riginals free f charge, charges fr cst f cpies nly Principle Eight: Limited exceptins, refusals nly fr these exceptins Principle Nine: Effective right f appeal against refusals r silence Principle Ten: Practive disclsure Only the Envirnment Law fully cmplies with the first principle. The Draft ATI nly allws citizens and residents the right f access, the Press Law nly allws citizens and the Statistics Law is unclear n wh can access. Nne f the laws are clear n the frm in which petitiners shuld submit an infrmatin request. The Draft ATI Law nly allws requests in writing. The Draft ATI, Press and Statistics Laws d nt require justificatins fr an infrmatin request. The Envirnment Law is unclear. Nne f the laws includes an explicit bligatin t assist petitiners. Only the Draft ATI Law includes specific time limits fr public bdy respnses: 15 days, extendable by a further 15 days. Nne f the laws is clear n the frmat in which public bdies shuld prvide infrmatin. The Draft ATI Law may allw fr fees in excess f the cst f the cpy t access infrmatin. Nne f the ther laws specify if public bdies can r must impse fees. Only the Statistics Law includes limited exceptins, nne f the laws require public bdies t issue reasns fr refusals r t perfrm the harm and public interest tests. Only the Draft ATI Law includes an appeal rute fr request denials and nly t the infrmatin cmmissiner. Nne f the public bdies analysed practively disclse all the infrmatin necessary t cmply with internatinal standards. Only the Draft ATI Law includes prvisins requiring public bdies t practively disclse infrmatin. 31

34 Calitin fr Accuntability and Integrity - AMAN Al - Rimawi Building Al-Irsal Street Ramallah Phne: / Fax: inf@aman-palestine.rg twitter.cm/amancalitin