Decree on Access to Administrative Documents (unofficial translation) was adopted by the Tunisian Interim Government in May 2011. Article 19 welcomes the adoption of the Decree and its many positive features as an important step in the process of democratic transition in Tunisia. At the same time, Article 19 urges the Interim Government to accomplish it in a short period and to minimize the number of exceptions in the document.

2nd country in the Middle East to adopt access to information legislation
“Tunisia is now the second country in the Middle East to have adopted an access to information legislation. Article 19 welcomes the efforts of the Tunisian Interim Government in adopting the Decree on Access to Administrative Documents only a few months after the revolution. This is potentially another milestone in the historic process of democratic transition in Tunisia, committing the country to building a culture of transparency, the right to know and strengthening accountability,” said Dr Agnes Callamard, Article 19 Executive Director.

“For the Interim Government to turn its back on the culture of secrecy, censorship and impunity that has plagued Tunisia, access to information should be subject to limited and specific exceptions. To enable the Decree to play its functions, the Tunisian Government must, as a matter of priority, clearly and narrowly define the Decree’s exceptions and commit to making it operational as soon as possible,” continued Dr. Callamard.

Article 19’s analysis highlights a number of positive features of the Decree. In particular, it provides people – regardless of citizenship – with a right to access administrative documents; it requires public authorities to proactively disclose information about their activities; it outlines a satisfactory procedure for access to information; and it establishes that access to documents is in principle free of charge.

Crucial weakness – too broad exceptions
At the same time, the Article 19 identifies some crucial weaknesses in the Decree which could seriously undermine its purpose and call into question the commitment of the Interim Government to open and transparent governance.

In particular, the exceptions to the principle of disclosure are too broadly drafted and fail to include a public interest override provision. According to such a provision, the disclosure of otherwise restricted information should be nonetheless required when this serves the general public interest.

Furthermore, the implementation of the Decree is not scheduled to take place before a period of two years despite the interim nature of the Decree itself. The experience from countries in Central and Eastern Europe that also underwent democratic transition shows that this can be achieved in terms of months rather than years and realistically should be no more than six months.

Guidelines
Recommendations outlined in Article 19’s comment are two-fold. First, the organisation has identified some key issues in the Decree that need to be improved through urgent action of the Interim Government both in terms of the Decree’s provisions and its implementation.

Second, due to the interim nature of the Decree, Article 19 recommends a set of measures that must be adopted by the new Government and the Parliament when transforming the Decree into the law.

Key recommendations:
The regime of exceptions to the right to information outlined in the Decree should be amended in order to comply with international standards. According to international law in this area, information should never be withheld unless it affects a legitimate interest protected by law, release of the information would cause actual harm to that interest and this harm would be greater than the harm caused to the public interest by non-disclosure.  The provisions of the Decree on exceptions (Articles 16 to 18) should be replaced by a single provision clearly laying down this three-part test;

Article 19 also calls on the Interim Government to urgently develop and adopt Guidelines clarifying the limited scope of the exceptions in the Decree in order to assure a progressive interpretation of the Decree, in line with international freedom of expression standards;

Article 19 urges the Interim Government to quickly develop a comprehensive action plan on the implementation of the Decree, in order to assure that the Decree be made operational with the shortest delay possible;

Adequate resources should be allocated for the training of officials designated as information officers within their respective public authorities on the right to information and the effective implementation of the legislation on access to information.

Related articles:

No frontiers, new barriers – free speech and attempts to stop it

Egypt: respect and protect freedom of expression and the right to information!

Volatile developments in Middle East

January: arrested writers, journalists, bloggers in Iran, Tunisia, Yemen and Belarus

Five billion people in the world have the right to information