Daily Mirror : Sri Lanka: Wednesday,
March 08, 2017.
•Government
could assert national security exemption in case of identifiable harm
•RTI
can be of some help in getting transitional justice
•Sovereignty
and inclusiveness among major global issues
Who is
Will?
Will
Ferroggiaro is a Washington (DC)-based consultant with more than 20 years
experience working on freedom of expression, government accountability, and
human rights.
He has worked on the right to information in
countries around the world, including India, Japan, and South Africa, as well
as the USA. For more than a decade, he headed the freedom of information
project at the award-winning NGO National Security Archive, where he negotiated
policy with the White House and authored reports on implementation of right to
information laws.
Will
Ferroggiaro, an expert from the United States of America, who is here at the
invitation of a Civil Society Organisation, speaks on the importance of the
Right to Information Act, Good Governance and democratic norms.
Excerpts:
When looking
at this concept called ‘Good Governance’, it was the main campaign slogan of
this Government. Today, it is even interpreted as a political slogan. How do
you define it?
What I like
to think is that there is no culture that is inherently better at Governance
than another. Rather, societies all need tools to strengthen institutions to
create ‘accountability cultures.’
The Right to
Information is one important tool in helping media, the average citizen, and
others to access information that can be used to pressure Governments and
elected representatives to act better, to be accountable in their duties.
I think the
idea of Good Governance is a norm, but practically how to achieve it is through
these tools. I do not think there is Good Governance without all of that
practical work that needs to be done.
There are
many elements of it. For example, in the context of the United States, we have
the Right to Information Law and other laws that require the disclosure of
information: Under the Clean Air Act, the companies that emit pollutants have
to disclose the number of toxic
pollutants that they release into the atmosphere, which the Government is
required to publish information. We have a variety of laws that enhance
transparency, including the laws and regulations that govern financial markets.
All of these tools together help citizens and different pressure groups to get
information to hold the Government accountable and make it more
responsive. From that, we have better
governance.
Q-You have
been in Sri Lanka for one week. According to your interactions with those concerned here, how
do you see this concept working in Sri Lanka?
I think it is
very difficult for an outsider, after a week, to have a good idea about the
important dynamics in any society. What I would say is that the RTI law is a
very good law. The law reflects best
practices from around the world. It is very smart. Sri Lanka should be
commended. All of the people who pushed for it for more than 15 years with
different drafts of the law should be commended, the media, civil society, as
well as the Government and Parliament that unanimously enacted it. We have had our law in the USA for 50 years.
We made a lot of mistakes when we started. Hopefully, Sri Lanka learned from
the mistakes the other countries have made.
For example,
we did not put enough money and resources to implement it at the outset. It is probably going to take additional
effort on the part of people for example, sufficient training and awareness of
the law both within and outside the government.
We know this from the experience of many countries. But the law could
help the people, in certain parts of the country, who are trying to get
reparations or land returned because of the conflict. This would be a way, for
example, to know what is happening with the commitments the Government has made
to people on these issues, perhaps even to know the nature of the
deliberations.
Q-There is
a perception that disclosure of all sensitive information will place hurdles in
the decision making process. What is your comment?
In general,
we have found it is better to disclose more information. Disclosure can help
policy deliberations because Government can benefit from informed public debate
that addresses issues the Government may
not have foreseen. That said, some countries including the US and the UK have
exemptions in their RTI laws allowing - but not requiring - Governments to
withhold information if it is still in the pre-decisional stage. Still, the
public can ask for it and the Government is required to disclose all but the
key facts of that information. Another aspect of this is that it is incumbent
upon the media, civil society and others to be ready to utilise that
information and help people understand what it means. I am not only an advocate in the United
States; I have made hundreds of requests in the United States and Canada. When
you get the information, it is sometimes not
clear, so it is important for media and civil society to analyse this
information and educate the people about it.
One final
thought: If there is true harm in disclosing the information, your law and
others have exemptions that can be used.
If it is concerning national security, you might review the material,
cut out portions, and release the rest.
It is always
better to disclose information; holding on to information is more of a
problem. It increases the number of
secrets such that the true secrets can’t be separated from those that can
eventually be disclosed and it reduces the public’s trust in the
Government. At the heart of all of this
is the public trust. If the Government makes an effort in a good faith, it is
actually going to get credit for it.
Q-In what
way has the Right to Information Act contributed to the socio-economic
development of your country and in other countries where you have experience?
In the United States, we have the national
law, and each State has its own law. These help people in knowing what benefits
they get, such as for war veterans, about public safety issues, health and
more. For example, pharmaceutical companies must submit the test data to the
agency concerned for it to declare whether a drug is safe or not; the public
and even rival businesses can access that data. In my home State of California,
there is a dam overflowing because of snow and rain. We can get information
about dam safety issues. We can get access to environmental information - to
know who is dumping pollutants. It affects all aspects of life.
In another
area, we used the law to get documents released concerning the activities of US
diplomats, military, and intelligence in Central and South America, including
death squads, in order to contribute information to the truth commissions, the
happenings in countries such as El Salvador and Guatemala, which those
Governments supported. We made these requests for declassification under our
RTI Law. This information contributes to stability and governance in these
countries.
Q-How
universal is this concept of good governance in the context of certain cultural
attachments to it?
The United
States is a multi-cultural society. We have people from everywhere. We are not
a perfect society in any way; we have racial and other issues. But while we’re
not perfect, we are a ‘nation of laws’ not men, as we like to say. In our
Constitution, people have freedom of belief, including freedom of religion,
freedom of speech, and freedom of assembly, which do not restrict how one should dress, what language they use,
and so on.
Those are the
precepts we live by. Governance is about
laws and adherence to laws and our culture stems from that. Like others, we
have corruption, Police abuse, and other lack of governance, but that stems
from larger issues of social and economic development rather than culture.
Q-Here,
there is the perception that if all information were put in the public domain,
Sri Lanka could not have successfully conducted the war on terrorism. How do
you respond?
First of all,
I acknowledge that these are difficult issues. We can talk about global norms
and all sorts of things, but I think each context is unique. In terms of
disclosure of information related to the disappeared persons, a particular
element of the conflict, it could be that the Government uses the proactive
disclosure of information provisions of the law to respond in general in this
area. The law allows for Government to disclose information of public interest.
If there is an identifiable harm in release either in response to a request or
in a proactive disclosure, the Government could assert the national security
exemption. But we have seen that issues of importance to a society don’t fade
away. RTI requests will likely come and they eventually end up in court. This
might be an opportunity for the Government to get out ahead of those requests.
Q-How have
you advised civil society to push for transitional justice through the right to
information law?
I am mainly
here offering the experiences of the US and other countries on implementing the
RTI Laws. I mentioned earlier that I worked to get the US documents on our
policy in Latin America released that were then used by the national and UN
truth and reconciliation processes in those countries. I believe that this
information helped those societies to come to terms with their past and helped
increase stability and good governance. So, it is possible that the RTI can be
of some help in this area here.
Q-In the
practice of journalism, we sometimes count on anonymous sources for obvious
reasons to get information. There is
fear whether the Right to Information Law will bar it. Instead, it will
regulate the flow of information only through the formal channel. It will help
officials to dilute or suppress information. What is your view?
The Right to
Information Law is one avenue to access information; journalists will always
have their sources and other ways of getting information. We also know that documents disclosed may not
tell the full story; that’s why the RTI requests, proactive disclosure of
information, and journalists’ efforts are needed to tell the full story.
Q-There is
this allegation that the principles of Good Governance democratic norms,
human rights etc- are used as a tool for intervention in internal affairs of
other countries. What is your view?
One thing I
have learned is that right to information campaigns are driven by demand for
information.
They did not
come about because of an outside expert showed up. These laws are based on the
public’s desire for information. It is their desire to have the Right To
Information, for freedom of expression, for example, to know that their taxes
are properly used, to know why they don’t have access to adequate water, etc.
These are all
locally-driven needs. I was in Japan in 1998.
One of the big scandals at the time was that the Health Ministry had
some blood supplies tainted by HIV. They did not disclose this to some people
who got blood transfusion. This was a major scandal. This was the key issue in
mobilising people for this right. It opened up this ministry and led to the law
there. In the United States, it took ten years to get our RTI into law. One of
the issues was that a member of the Congress could not get the Civil Service
Commission to give him information. These are all local issues wanting to solve
local problems. Sri Lanka is the 115th country with a law now. It is a global
norm now. But it is about power in the
end; people want to be their own governors.
Q-Are
these Liberal values under strain in the West including your country because of
rising Nationalism?
I would say
that the big issue the world is facing is sovereignty and inclusiveness. There
are a lot of global changes due to our global trade, global exchange of
information and so on. There are financiers from the US investing in commercial
ventures in Sri Lanka, as the Chinese do in the US. There is this GSP plus
trade benefit too.
These link us
to the world. The more we are interconnected to trade, the more it brings
benefits to society. It also brings risks. The key issue as I see it is who is
represented at the negotiating tables when decisions are made. We have not solved that problem.
When making
trade deals, the average person is often left out of the negotiating
table. It has happened to us for 30
years in the US; that is in part why people elected President Donald
Trump. People felt that no one was
representing them; when jobs go to other countries, people felt it. We have not
solved this issue of inclusiveness and sovereignty.
Q-How true
is the claim Sri Lanka has one of the best Right to Information Acts in
the world?
I have seen
the Center for Law and Democracy’s ranking; they do a really careful analysis.
As I said, I think Sri Lanka’s law incorporates best practices from around the
world.
For example,
the USA law does not have a public interest override like Sri Lanka’s. That
said, laws can very well written in the books, but it is their implementation
that is most important and most relevant to the people’s lives.
Q-How long
will it take for Sri Lanka to implement it properly?
Well, I want
to be positive, but it has taken 50 years and we are still amending our RTI
law, even last year! There are many challenges in getting RTI laws properly
implemented, many of which are hard to foresee.
Many
countries have instituted reviews of their laws or provisions of their laws
after a year or two, or legislatures will hold hearings to assess
implementation. I will just say that these laws are always somewhat a ‘work in
progress’ like democracies more generally.