“Praised by many as being one of the most progressive access to information laws in the world,” Tunisia’s current legal framework governing access to information set a high bar for the rest of the region. Five years after the law’s passing, how does has it fared, what has implementation looked like, and what efforts are stakeholders taking to improve its track record?
Tunisia’s path toward writing into law the right of access to information began in May 2011, when authorities passed Decree No. 41 of 2011 (amended by Decree No. 54 of 2011 in June 2011), which only governed access to the administrative documents of public agencies. The legislation granted natural and legal persons the right to access these documents by submitting written requests. It also required public agencies to regularly publish different types of information, including details about organizational structure and copies of policies and decisions that affect the public. It carved out a number of exemptions for which public agencies could refuse to release administrative documents in response to a request, including for national security purposes or for documents pertaining to ongoing criminal investigations.
In 2014, Tunisia passed a new constitution that formally recognizes the right of access to information, specifically stating in Article 32: “The state guarantees the right to information and the right of access to information and communication networks.”
In March 2016, following a series of compromises ahead of the finalizing of the text, Tunisia passed Organic Law No. 22 of 2016 on the Right to Access Information. The law went into effect the following year, nullifying the 2011 decree. The law governs government bodies, public agencies, and organizations and entities that receive government funding, among others. It requires all of these entities to publish certain types of information, including policies and programs that concern the public, regulatory text governing activities, and certain types of statistical data—all on a website that is updated at least once every three months.
The law additionally creates a procedure for submitting written requests for information, requiring responses from relevant entities within 20 days. For information implicating the life or freedom of a person, the deadline for responses is shortened to 48 hours. Specific provisions allow for entities to get extensions, require written and justified rejections to requests, and grant the opportunity to appeal. The law also lays out a number of exceptions for which information need not be disclosed, including “damage to security or national defense”—though exceptions are caveated on a prejudice test. An Access to Information Authority (INAI), made up of nine members, was created by the law and assigned a variety of responsibilities including ruling on appeals and providing opinions on draft legislation involving access to information. The INAI’s decisions can be appealed by the administrative court. Finally, the law stipulates fines for those who hinder access to information intentionally and subjects those who intentionally and illegally destroy information to a penalty established in the Penal Code.
Stakeholders who spoke to TIMEP about the law didn’t have much in the way of critiques regarding the text on its own, though Tunisian-American lawyer Wafa Ben-Hassine, who has practical experience using this law, did reflect that although the legislation is really strong, some of the legal language is slightly difficult to understand. Members of iWatch, a leading Tunisian organization that aims to fight corruption and enhance transparency, also told TIMEP that one of the issues with the text of the law has less to do with the text itself, and more with what is absent. For example, the law’s failure to specify deadlines for appeals before the administrative court has meant significant delays and stalls to the process.
There is a lack of culture around the right to information among state entities, according to iWatch members speaking to TIMEP—some are not even aware that the law applies to them (many of them smaller municipalities). Other entities are aware of the law, but either lack the capacity or will to actually implement it.
Despite the law’s requirement for information to be published and regularly updated on a website, many agencies often lack the resources, including IT infrastructure, to do so. The law also requires that relevant state entities each designate an individual to respond to and handle information requests. Yet, Ben-Hassine reports often receiving no answer when contacting the provided hotline or email address for information requests; at other times, she would reach someone who would have no clue how to respond to such requests or where to direct her. Others have described being told that they were missing information from their information requests, sucked into a vortex and never-ending back-and-forth, Ben-Hassine adds. These experiences can be discouraging to smaller capacity civil society organizations or individuals hoping to use the law.
Members of the iWatch team, who have collectively filed hundreds of information requests since the law’s ratification, also highlight a culture of resistance that is present among some entities. “Why should we give you this information?” some have asked. There are particular entities that are known to refuse to disclose information, including the Central Bank, TunisAir, and Tunis Telecom. The iWatch team members explain that there is often difficulty around getting information involving financial spending and the economic sector. Some entities have stated that because their sector is “economically fragile,” they cannot provide the requested information—though this is not a recognized exception laid forth in the law.
In 2019, iWatch submitted 149 information requests; 46 percent of which were not answered within the deadlines required by the law or were not answered at all. Human Rights Watch (HRW) describes that even after orders from INAI and the administrative courts asking entities to disclose requested information, some still do not comply. Though the law sets forth fines, there have been no reports of prosecutions for violators. On the INAI, Ben-Hassine also raises concerns about its lack of a proper budget.
Despite the challenges, the iWatch team does point to a number of positive trends. Anecdotally, they say that the number and diversity of civil society organizations, journalists, and NGOs using the law is increasing, suggesting “a new culture of fighting corruption.”
In early years, the vast majority of information requests were submitted by iWatch and a few other players, but most recent counts show that iWatch is only responsible for 46 percent of requests, something they describe as a positive development. Citizens are also beginning to use the law to access information, including political actors and parliamentary members.
What more can be done
In order to sustain and increase use of the law, iWatch recommends that civil society organizations use it regularly in a commitment to strengthen the right of access to information. It also points out the importance of leveraging the law to engage citizens and spread awareness on what public entities are doing and to facilitate and support its use among citizens, journalists, and other organizations. Ben-Hassine also recommends that donors invest in initiatives and organizations willing to prioritize the right by regularly submitting requests and by releasing outputs and programs that simplify the information request process for new users of the law in order to make it less daunting.
Important, of course, is what the government and public administrations must do in order to enhance implementation of the law. The team members at iWatch recommend the creation of trainings to spread awareness about the law in order to drive home its applicability and to clarify the details of proper implementation, as well as trainings to improve employee capacity. At a higher level, there is a resource challenge; financial and relevant resources are necessary to help agencies create and maintain websites, hire IT staff, and respond to information requests within the prerequisite timelines. Previous convenings have also highlighted the ways in which technology can be leveraged to improve communication and case-handling among agencies and reviewing bodies. Finally, it is the responsibility of state authorities to articulate a commitment to the right of access to information intended to create a trickle-down effect among all agencies to fully change the existing culture on the centrality of access to information and the obligation and responsibility of those handling public funds toward everyday citizens.
This is part of the TIMEP Legal Unit’s Access to Information Laws in MENA series.