In February 2017, the Lebanese parliament passed Law No.28 on the Right to Access Information, one of the first in a series of anti-corruption laws to be passed in recent years. This law not only “legally obliges state administrations to publicize crucial information, such as annual budgets and administrative decisions,” but also “allows journalists, researchers, or just about anyone to request information [from state administrations and private companies linked with the Lebanese state].”
Yet, the law’s implementation has been desultory. Over four years after its passing, most state administrations continue to drag their feet when it comes to publishing information that they are legally required to publish online, as well as ignore or refuse information requests submitted by journalists and researchers on spurious grounds, ultimately doing nothing to confront deep-seated state corruption and impunity.
Unexpectedly, the Access to Information Law was amended this July via Law 233 as published in the Official Gazette—more than four years after it was originally passed. These amendments came as a result of lobbying efforts exerted by local NGOs, such as the Lebanese Transparency Association.
What are these amendments, and will they lead to a better implementation of the Access to Information Law?
Who can request information?
The first article of the original law states that any legal or natural person has the right to access information from public entities. The law did not specify what information or details need to be provided by the requester. Yet, in several instances, public entities dragged their feet or flat-out refused to provide information to organizations and individuals on the grounds that such requests were not accompanied by any explanation of who the requester is, what are their capacities and interest, and what they plan on doing with the information. For instance, in 2020, the Gherbal Initiative, a local CSO that advocates for transparency and for making information from the state publicly accessible, submitted information requests to the Directorate General of Vocation and Technical Education and to the Lebanese University. They requested to see these two public entities’ budgets and expenditures for the years 2018 and 2019. Yet, in both instances, the information requests were rejected ostensibly because the Gherbal Initiative did not present any information relative to their capacity or interest.
This is where the first amendment comes in. Article 1 of the Access to Information Law has now been amended to explicitly state that information requesters do not need to disclose what their capacity and interest are, explain the reason for the request or how they plan to use obtained information.
This amendment directly confronts some of the excuses and justifications used by public entities to slow the process and avoid providing the requested information—a positive development for implementation of the law.
From where can information be requested?
Article 2 of the law deals with the entities which fall under the law’s provisions, and the original formulation was relatively expansive, including “the state and its public administrations,” “municipalities,” “private companies tasked with managing public utilities,” “mixed companies,” and “regulatory authorities,” among others. The amended article expands on this definition to explicitly mention the General Directorates of the Presidency, the Prime Minister’s office and the parliament. This amendment is particularly noteworthy as these three public entities—which represent the highest legislative and executive authorities in the country—have not complied with the law since it was passed. For instance, in all of the Gherbal Initiative’s annual reports since 2018, these three entities were non-compliant when it came to every submitted request.
The amended article also expands its jurisdiction to include religious courts (which were previously exempt from the law’s provisions) and the Constitutional Council. It is worth bearing in mind that Islamic courts are administratively tied to the Prime Minister’s office and are funded by the state. Hence, their inclusion—alongside Christian courts— in the law will, theoretically at least, allow for greater monitoring of how public funds are spent.
What can be requested?
The third article in the original law details the types of documents that can be requested, such as budgets, written or audiovisual content, studies, reports, minutes of meetings, public contracts, archival documents, and so on. The amended version of this article adds that public entities providing information must do so regardless of whether they took part in preparing it. For instance, the Center for Public Sector Studies and Projects, managed by the Office of the Minister of State for Administrative Reform (OMSAR), is home to a large number of studies and reports prepared by numerous ministries and public entities across the years dealing with virtually all sectors—education, healthcare, the judiciary, public transportation etc. Given that OMSAR has generally not taken part in preparing most of these studies, the amended law mandates that it provides these studies to any requester regardless of whether its imprint is on them or not. In addition, Article 19 dealing with rejection of information requests now states that a public entity cannot use the excuse of not having the information requested when the nature of the information falls under the type of work and responsibilities that the entity carries out. Thus, if a researcher were to ask the Civil Service Board (CSB) to provide information detailing the number of civil servants in a given ministry and to disaggregate the data by gender, the CSB cannot refuse the request as this information falls directly under its responsibilities.
Can confidentiality clauses in public contracts now be seen?
The fifth article of the original law deals with information that should not be handed over, such as national defense secrets, trade secrets, documents that could harm the financial and economic interests of the country and national currency, as well as medical records and personal details of individuals. Interestingly, the point on documents that could harm the economy has been removed. Additionally, a sentence has been added to this article stating that confidentiality clauses in public contracts do not preclude the right to access them, as long as the information does not violate the provisions of Article 5.
This is particularly significant, as public contracts with clauses guaranteeing their secrecy and confidentiality have been used by Lebanon’s ruling class to make hefty profits at the expense of the state. In late 2005, a contract was signed between the Lebanese state and what was assumed to be Sonatrach, Algeria’s state-owned oil company, to supply Lebanon with fuel oil. Despite there being nothing exceptional about this purchase the Lebanese state made, its contract inexplicably had a secrecy clause. Fast forward to March 2020, the “Sonatrach scandal” came to light: it turned out that the company the Lebanese state entered into a contract with was not the Algerian state-owned oil company, but a company with the same name registered in the British Virgin Islands, a notorious tax haven. In addition, it transpired that the contract—which was still in effect in early 2020—was heavily in the favor of the company at the expense of the Lebanese state. Worst of all, since late 2005, laboratory tests to determine the quality of the fuel oil were being falsified, and at least $10 billion were paid for fuel that was fraudulent and not compatible with (and even damaging to) Lebanon’s power plants. Fuel importers affiliated with the ruling class benefited from this contract, dispensing countless bribes to civil servants in governmental laboratories and the Ministry of Energy and Water. The Special Investigative Commission at the Central Bank refused the public prosecutor’s requests to lift secrecy from suspects’ bank accounts, and ultimately, only relatively minor civil servants were reprimanded.
The amended fifth article of the Access to Information Law could, at least theoretically, protect Lebanon from another corruption scandal such as the Sonatrach scandal, as public contracts with confidentiality clauses can still be requested and retrieved through the law. In the absence of an independent judiciary capable of confronting grand corruption that accompanies such public contracts, this amendment could, at the very least, make it more difficult for Lebanon’s kleptocrats to hide terms of dubious public contracts offered in a non-transparent manner and riddled with conflicts of interests.
What should be published, regardless of information requests?
The second part of the Access to Information Law deals with information that should be published and made available by public entities without the need for requests to be submitted—namely decisions, instructions, circulars, memos and rules of procedures. The amendments add that public entities must publish information on their website in a manner that is easy to locate, copy, and download. In addition, all legal and administrative documents that public entities are required to publish in the Official Gazette must now also be published in an open-access electronic format on their websites, within a year of the amendment’s passing.
However, the amendments raise the threshold of transactions a public entity must report from 5 million Lebanese Liras (LL) to 50 million LL. When the law was passed in 2017, 5 million LL was worth roughly $3,300, whereas today, with the economic and financial collapse Lebanon is experiencing, 50 million LL was worth roughly $2,500 at the unstable and fluctuating black market rate of 20,000 LL/1 US dollar in early September 2021.
What about guardianship authorities?
One of the common excuses used by public entities to avoid providing the information requested was that they needed to refer to their guardianship authorities (in Arabic, sultat al wisaye). In the Lebanese state, several institutions have a ‘guardianship authority’ under whose administrative mandate they fall. These entities are generally autonomous and have their own budgets, but the guardianship authority does have the powers to modify or alter decisions and policies enacted by its subordinate. For instance, governmental hospitals or the Center for Educational Research and Development fall under the guardianship of the Ministries of Public Health and Education respectively. In the aforementioned 2020 report by Gherbal Initiative, 13 public entities responded to the information request by saying that they should check with their guardianship authorities. The amended version of the law will ostensibly fix this: In both Articles 2 (dealing with which entities fall under the law’s purviews) and 16 (dealing with deadlines for responses), a sentence stating that public entities must respond to information requests without having to go back to their guardianship authorities, if they exist, is added.
Too good to be true?
While all the above may signify progress, many obstacles hinder the full and proper implementation of this law and its amendments.
Perhaps the main obstacle to the law’s implementation is the absence of a National Anti-Corruption Commission (NACC) capable of ensuring and overseeing implementation. The law and its amendments give a lot of powers and responsibilities to the NACC, such as receiving and investigating complaints against non-complying entities. Yet the NACC has yet to be established, despite the May 2020 passage of a law calling for its formation. And even if it is formed, there is no guarantee that it will have the independence that it needs to operate well and have the adequate funding and human resources needed, particularly given the bleak state of finances in the bankrupt Lebanese state. Several misgivings exist regarding the six-member composition of the NACC, as at the very least two of the members—the expert in public sector management and the expert in finance and banking—will be directly and indirectly handpicked by the ruling class and the banks, respectively, seriously jeopardizing any credence when it comes to “anti-corruption” matters.
In addition to the absence of the NACC, Lebanon’s judicial system is heavily prone to political interference—be it in the civil judiciary and among the public prosecution office, or in the administrative judiciary which settles disputes between citizens and the state. No matter how progressive these amendments may be on paper, the lack of an independent and empowered NACC and judicial branch will mean that transparency will be an exception rather than the norm, at a time when systemic reforms are as urgently needed as ever.