Designing rti laws for effective implementation

rather, all of the dynamics discussed in this chapter have tended to work in various combinations to generate the conditions that allow for passage of an RTI law in a given country context.

and the obligations of other officers to cooperate with it in identifying and finding information be defined clearly.

Another key consideration is the range of preexisting laws, rules, and regula-tions. In many cases, the regulatory framework establishing RTI and ensuring its implementation consists of several laws, decrees, or ministerial orders, some of which contradict the principle of disclosure, and some of which support RTI through implementing rules.

Many countries either have state secrets laws that supersede or are treated as dominating RTI laws⁸ or have RTI laws with broad exemptions to disclosure, making it difficult for officials to determine what kinds of information can be disclosed, particularly if they are penalized for violating exemption requirements.

This can discourage information disclosure. For example, in some cases, archives laws contain outdated secrecy provisions that contradict RTI laws. Employment contracts, which may have been designed some time ago, can also impose broad duties of secrecy on civil servants. In other cases, internal codes of conduct may include rules on secrecy, and there may well be other internal organizational rules or systems that do the same, making it difficult for public information officers to transition to greater disclosure of information even when the RTI law allows it.

Better integration of RTI laws and fewer conflicts with other laws is more likely to be achieved in contexts that emphasize good regulatory practices (GRPs). GRPs enhance the quality of regulatory regimes and their outcomes and put in place effective, transparent, accountable, and consultative reform processes that assist in reform prioritization, design, and implementation.⁹

Provisions Governing Definitions and Scope

For certain provisions of RTI laws, a direct causal relationship is found between the rules and how RTI regimes are implemented and function to disclose infor-mation in practice. These include provisions specifying definitions and the scope of the laws, the regime of exemptions established in law, and the procedures for processing requests. In these areas, it is necessary to ensure clarity of terms and introduce well-articulated provisions relating to the scope of a law’s application, because doing so will naturally limit the administrative discretion that has to be applied when implementing the law. Vaguely worded laws also allow for greater administrative decision making to implement, which “can lead to differential application by different public authorities, undermining public confidence and generating unmet expectations, and can also provide opportunities for abuse of that discretion to prevent disclosure of information” (Mendel 2015, 30).¹⁰ Moreover, discretion is costly and places a burden on officials, since they may have to verify information such as the citizenship of requestors or make decisions on whether certain types of information fall within the scope of a law.

Some countries have crafted legal provisions that reduce the need for admin-istrative discretion. These provisions include avoiding qualifications of the defini-tion of informadefini-tion in ways that would require officials to consider whether the qualification has been met; extending the right to access information to everyone, not just residents or citizens, so that officials do not need to verify residency or

citizenship; and providing a list of examples of the types of situations where the public interest might override exemptions.

Provisions on Central Support Bodies

The design of legal provisions concerning central support bodies is also an impor-tant determinant of how well RTI laws function in practice. These central bodies include both internal government support bodies (nodal agencies) and external support bodies (independent administrative oversight bodies and courts). There are three main roles undertaken by these bodies: (1) supporting internal govern-ment institutional capacity for implegovern-mentation, (2) dealing with complaints, and (3) raising public awareness and support. Each of these roles is critical to the effective operation of RTI regimes. Often less recognized but still of critical importance is the role of the central body that provides support to the usually hundreds of separate public agencies responsible for developing systems to sup-port implementation of RTI laws (Mendel 2015). In many cases, public agencies charged with responding to requests lack the expertise to develop effective rules and systems on their own. Even where they are able to do so, requiring each agency to develop its own approach absent a central coordinating body fre-quently leads to uneven approaches to implementation of the law, which can reduce effectiveness. A strong central support body can alleviate these problems and relieve part of the burden on individual agencies for establishment of rules and systems (e.g., tracking systems) to support implementation of RTI.

Specification in laws of responsibility for these roles, legal establishment of the central support bodies designated as performing these roles, and careful attention to institutional design and role allocation options in the development of RTI laws can provide a basis for identifying the need for resources to carry out these func-tions, ensure their continued existence, and, ultimately, help prevent systemic failures during implementation.

Provisions on Oversight and Enforcement

In many jurisdictions, enforcement provisions of RTI laws are very weak.

Typically, the rules on responding to requests for information are clearly set out in the provisions of RTI laws, and provisions address how to appeal any denials of, or failures to process, requests (e.g., breach of timelines, etc.), beginning with an appeal to the administrative body to which a request is initially submitted, often followed by appeal to an oversight body, such as an information commis-sioner, and progressing all the way to the courts in many countries. In other areas of RTI laws, however, the rules regarding oversight and enforcement are much less clear. Rules relating to proactive disclosure, for instance, are often much weaker than for responsive disclosure, with no provisions concerning oversight and enforcement and no provision for increasing disclosure over time to ensure that laws remain current.

Provisions concerning oversight and enforcement of records management practices are, similarly, often absent from RTI laws, possibly because of a sense that oversight and enforcement of records management is dealt with sufficiently

in archival or public records laws when, in fact, this may not be the case.

Even when archival or public records laws do address records management, these laws usually do not establish independent oversight and enforcement provisions and thus could be strengthened by the inclusion of provisions allowing for such oversight through the RTI law. In drafting RTI laws, there is a need to establish oversight and enforcement mechanisms for all essential components of RTI regimes, including appointment of information officers, proactive disclosure of information, and records management.

There is also a need for a stronger role for independent oversight bodies, such as information commissioners, to enable them, for example, to undertake inde-pendent studies on how certain aspects of the law are functioning in practice, establish binding standards relating to critical areas of operation affecting the RTI laws, such as records management, conduct investigations when necessary, and issue orders to address implementation gaps.

No law is ever perfectly implemented, but the gap between RTI policy and practice has historically been quite significant. This chapter has discussed several ways that careful legal design may facilitate more effective implementation.

Attention to good legal design has the potential to reduce the policy-practice gap that has arisen in many jurisdictions. Strategies for effective legal design include reducing administrative discretion by drafting clear and simple rules, drafting provisions that establish and clearly define the role of central support bodies and strengthen oversight and enforcement, and drafting legal provisions that pay careful attention to the way in which the RTI rules and systems are integrated into bureaucratic planning and regulatory systems. The latter entails consider-ation of the RTI law in relconsider-ation to sanctions and disclosure and/or secrecy provi-sions in other laws and reviewing how the RTI law fits into the broader policy framework of the country.