By Hanna Rioseco
This summer I had the unique opportunity to explore, in real-time, how public health emergencies affect information policy and the legal frameworks that govern the right to information. The right to information is an integral component of the right to freedom of expression. Enumerated in multiple human rights instruments, access to information enables people to make free and informed decisions. Freedom of information is fundamental for government transparency and accountability and is an important safeguard against corruption. Effectively realizing the right to information generally entails a legal regime that requires public authorities to proactively disclose important information, and also establish procedures through which the public can make requests for publicly held information.
COVID-19, however, has placed constraints on the ability of public authorities to accommodate information requests. For example, many public agencies were required to shut down completely at the onset of the virus, causing delays in responding to requests or publishing information. As a result, some States have amended the rules governing the right to information to extend or suspend statutory time limits, to accommodate remote work, or in some cases to prioritize the procurement pandemic related information. The Centre for Law and Democracy’s COVID-19 Tracker, which I helped to keep up-to-date throughout my internship, lists the various legal changes governments have made to their right to information processes and laws.
Tracking how States altered their information laws proved to be challenging in and of itself. Some changes were passed via legislatures, whereas other changes were mandated in executive decrees or tied to emergency orders. Locating the exact law or decree was difficult for countries that lack the online capacity to upload information to and manage websites. Sometimes, I could only find evidence of how public agencies adapted to COVID-19 working conditions on the Twitter of Facebook pages of local information commissions. Though the most common legal response was for governments to extend or suspend the statutory deadlines associated with filing or appealing information requests, some countries have made exceptions for requests related to COVID-19 and public health.
In a report on freedom of expression during COVID-19, the UN Special Rapporteur noted that while temporary disruptions in the ability of governments to fulfill their right to information obligations may be expected during COVID-19, those disruptions should only take place where necessary for public health and safety. Generally, human rights instruments specify that restrictions on the right freedom of expression must meet a three-part test: the restriction must be provided by law, it must seek to protect a legitimate interest set out in international law, and it must be necessary. In assessing whether a restriction is necessary, Courts will first assess whether the restriction was proportionate to the aim pursued; a limitation might not meet the “necessary” requirement if less intrusive measures are available to meet the same public health objective. For example, a blanket suspension of the processing of freedom of information requests will seldom be necessary or proportionate, because access to information and government transparency are both extremely valuable for public health.
Access to information is particularly important during COVID-19, as governments and individuals are engaging in high-stakes decision making daily. In this context, governments must continue to fulfill their obligations and ensure people have access to timely and reliable information. The UN Special Rapporteur noted that “a public health threat strengthens the arguments for open government, for it is only by knowing the full scope of the threat posed by a disease that individuals and their communities can make appropriate personal choices and public health decisions.” Pubic authorities should attempt to proactively disclose information as quickly as possible, as individuals and communities need access to timely and reliable information in order to make informed personal choices and effective public health decisions. With more pressure than usual on public officials to support and guide us through this crisis, it is also important that governments retain public confidence by remaining transparent about their decision-making processes and policy objectives. Access to information enables the public to hold decision-makers accountable for their actions and can safeguard against harmful policies; it strengthens the capacity for people and governments to respond to COVID-19 and can save lives.
In the context of a global pandemic, the ability to access timely and accurate information has never felt more important. Tracking and reporting how governments have, or have not, promoted the right to information has taught me valuable lessons about how governments can, and should, respond to public health emergencies, and how emergencies affect various legal systems. I also learned about how international human rights law can guide States in responding to emergencies in a way that promotes human dignity and retains the principles of responsible governance. Lastly, my work this summer showed me first-hand the watchdog role civil society organizations can play during a pandemic by keeping tabs on government emergency responses that impact fundamental human rights.