A year has passed since the Access to Information Authority (AIA) was established in Tunisia. This authority is in charge of reviewing the complaints against persons denying access to information. Considering the importance of this experience in Tunisia, The Legal Agenda interviewed AIA Chairman Judge Imed Hazgui to talk about the authority’s most important achievements and challenges faced. The following interview took place in the summer of 2018.
The Legal Agenda: A year has passed since the election of the AIA members. How do you evaluate this year in terms of the strides made and the challenges you faced, if any?
Hazgui: AIA members were elected in July 2017. The order of our appointment was issued in August, then we were sworn in before the president of the republic on 20 September 2017. Legally, the establishment of the AIA was not complete until September 2017. Immediately after that, we started drafting a preliminary estimate of the budget that would enable us to obtain a head office and get it ready for work. We negotiated with the Ministry of Finance and obtained an initial financial payment at the end of October 2017. This enabled us to obtain an office in a relatively short time. We are renting it, of course, because the government does not have sufficient resources. It would have been optimal if a head office had been allocated.
The procedures for obtaining and furnishing the office took months. We didn't start the actual work until January 2018. However, this is still a record time compared to other national bodies and councils like the Supreme Judicial Council which took a year or more to complete these procedures. We are lucky in this regard. In addition, we did not stand idly by during these months. We organized many awareness-raising activities and established cooperative relationships with foreign organizations. We also organized a series of meetings to take into consideration the diversity of our tasks between judicial and supervisory, evaluative, and awareness-raising roles.
Cases: Who Files Them? And Against Whom?
LA: Regarding the cases that you have received in the past period, who filed the most complaints? Was it the public, associations, or juridical personalities?
Hazgui: The total number of cases we received is 228. These cases were filed equally by citizens, associations and other legal entities. Surprisingly, we have not yet received any case filed by a journalist. This is surprising because it reflects an absence of the sense of importance of the law to journalists. In comparative experiences, for example – as I was recently told by Spanish officials – more than 75% of the requests for access to information were submitted by journalists.
Thus, we call on journalists to interact more with the AIA and use their right to access information. We believe that convincing them [to seek that right] is part of our role in promoting the culture of access to information.
LA: Against whom have these cases been filed? Was there a particular department or ministry that had the largest number of complaints filed against them?
Hazgui: Out of the 228 cases we received, 99 have been brought against ministries, 30 against public institutions and establishments, and nearly 30 cases against municipalities. We also received cases filed against universities and political parties.
No ministry in particular had the largest number of complaints filed against. The cases involved almost all ministries, including the prime ministry.
With regard to parties, the “I Watch” organization filed cases against some of them for the purpose of obtaining their fiscal accounts. I Watch brought cases against the Ministry of Relations with Constitutional Authorities, Civil Society and Human Rights, as the latter is where these financial accounts are deposited. Interestingly, the respective parties responded that they are not concerned with this law because they are not subject to public finance. The AIA rejected the cases against some of these political parties on the grounds that they are not subject to the provisions of the Right to Information Law, and failure to prove that these parties benefit from public funds. However, the AIA accepted the lawsuit I Watch filed against the prime ministry and the Ministry of Relations with Constitutional Authorities, Civil Society and Human Rights with regard to access to the list of parties that submitted the auditors' reports on their annual financial statements between 2011 and 2017, and those that did not respect this procedure, denying access to copies of these reports.
Decisions and Exceptions to the Right to Information: Jeopardizing Public Security and Personal Data
LA: How many cases have you adjudicated since last February? Are you satisfied with the speed with which you decide on cases?
Hazgui: We have decided on 95 cases so far. The law states a meeting should be held once every 15 days at least, but we actually meet once a week. This is because the work volume and expectations are large. As soon as citizens were informed of the AIA establishment, we were bombarded with lawsuits, amounting to 228 in a matter of a few months.
With regard to deadlines, they are related in the first place to the investigation. In theory, the law sets 45 days for adjudication. However, we cannot always adhere to that because sometimes we receive files from organizations or citizens without any supporting documents. When such documents are available and ready, the file goes directly to the Board and we decide on it. Investigation is sometimes delayed, so we have to notify the concerned parties or request the mediation of other bodies to obtain the required documents.
LA: The Right to Information Law states some exceptions, the most prominent of which is the possibility of jeopardizing public security. Have you received such cases, especially ones related to the Ministry of Interior?
Hazgui: Yes, the AIA has already received a number of such cases, filed by organizations and citizens, concerning the Ministry of Interior’s refusal to provide data based on the fact that it concerns public security. We are looking into them and we will decide on them soon.
LA: What is the criteria used to estimate the harm to determine whether or not the exception should be lifted?
Hazgui: We initially investigate the case and correspond with the relevant authority to request the documents related to the case. In most cases, the concerned body provides us with the required documents. We examine them at the level of the AIA and see whether this data is accessible or falls under the exceptions article. Even if this data constitutes an exception, we still also consider whether the interest in disclosing the information is more important than the damage that may or may not result from it. This is termed as the “interest and damage test”.
For example, in a case brought before us against the Governorate Council of Tunis, the case was about denying the plaintiff access to an oversight report prepared by the governorate’s inspection services regarding a number of suspicions of corruption related to the management of Islamic cemeteries. Following the investigation, we found that the report indeed contains personal data. However, the disclosure of corruption here is more important than the damage that may result from the disclosure of personal data.
LA: This brings us to the dialectic between the right to access information and protecting personal data, as there seems to be a fine line between these two. What are the boundaries between these two and how do they intertwine? Especially since you have already had reservations on the Law on Protection of Personal Data?
Hazgui: This is indeed a very important issue because we should have been consulted with regard to the draft law, considering its direct relationship with transparency and access to information. However, this did not happen, and we issued a direct statement after we were informed that the bill was referred to the House of Representatives, with urgent consideration by the government. We published our reservations and requested to be heard by the Committee on Rights and Freedoms, and we were. A number of civil society organizations supported the position of the AIA and considered that the bill would have several disadvantages. In fact, our concern is that the protection of personal data is basically an exception to the right of access to information and it is feared that public institutions may use this exception to conceal and obscure information and deny entities and individuals their right. We know very well that most public documents must include some personal data.
LA: Do you have statistics on the number of decisions implemented by the relevant institutions?
Hazgui: No, we don’t. I cannot give you numbers and statistics because we do not have them yet. We are trying to follow up on the implementation of AIA decisions, but we are only able to know if these decisions were not implemented when the concerned party comes back to us saying that they informed the challenged party of the ruling but the latter did not implement it. For example, there is a case against the municipality of Tebourba in which we issued a ruling that provides the plaintiff with access to the minutes of the municipal meetings, but the municipality refused to do so and appealed the decision.
LA: We may wonder then to what extent can the AIA obligate public institutions to respect its decisions and the right to access information?
Hazgui: Unfortunately, the Right to Information Law does not provide much in terms of the obligation to respect our decisions. It basically stipulates financial penalties against those who deliberately disrupt access to information, but in turn does not explain who is authorized to impose these penalties. We can also turn to Public Prosecution in cases of disregarding AIA decisions, but we often resort to the media to expose the concerned institution’s denial of the right to access information. This usually yields a positive result. We consider the media a more effective weapon than penalties because the latter may remain unimplemented.
The Monitoring Role of the AIA
LA: How do you exercise your monitoring role?
Hazgui: Our oversight role is very important because it will achieve the goal of consolidating the right of access to information more than any other role, and it will develop the work of administration and other public institutions. However, it requires great resources we do not have today. Because the scope of implementation of access to information includes thousands of institutions, how can we monitor all of them and keep an eye on their compliance with the law and dissemination of information? We are trying to do this with what modest resources we have. We chose to start the work on specific targets such as the presidency of the republic, the House of Representatives, and all ministries, municipalities and large public enterprises. We are also exploring ways to strengthen our role in cooperation with other bodies and organizations.
These and other structures are required to disseminate a huge amount of information across their sites. In reality, many of them do not even have an official website. You may be surprised to learn that the presidency has been the most recent major public structure to establish an official website, partly thanks to us. We addressed the presidency and drew their attention to the fact that it is unreasonable for a public institution to deal with citizens only through Facebook. The same applies to newly-created municipalities that we cannot blame as they are still new and do not have the necessary resources. We are currently working mainly on the large institutions and following their sites to remind them that they should update their data.
LA: With regard to official websites, the AIA does not have one as well.
Hazgui: That's true, and it is under construction. The issue is budget-related. We made the required consultation, selected the company, and discussed the website’s components. We hope that it will be ready by September.
Necessary Steps to Enhance the AIA Work Administratively, Functionally, and Financially
LA: Many national and constitutional bodies complain of what they consider marginalization, isolation, and cutbacks of resources by the state, what do you think about this matter?
Hazgui: We believe that these bodies have a central and pivotal role in supporting democracy and making it a success, instilling a culture of rights and freedoms and continuing the democratic process; therefore, they should not be compromised. However, we sometimes hear voices – even from within the political authority itself – that question the usefulness and effectiveness of these bodies. We should be clear in supporting this role. For us, we have not faced any internal problems with the government, and we hope that this will continue. Additionally, we did not appease anyone or any entity. However, resources remain a major problem as it is not enough to entrust the AIA with several tasks, but it must be provided with the necessary resources to carry out those tasks. We will try to get more funding in order to enable us to do our job better.
We have recently met with national and constitutional bodies and agreed to establish a coordination and organization of a national symposium to further raise awareness of our roles, and to empower these bodies to confront all parties that are trying to marginalize them and question the worth of their work.
International Cooperation and “Foreign Funding”
LA: The talk about international cooperation brings us to the subject of foreign funding which always raises the question about the ability to maintain independence.
Hazgui: On the contrary, this will further strengthen independence as long as partner organizations believe in transparency and the objectives of independent public bodies and their role in consolidating democracy in Tunisia. We are the ones adjusting our programs and needs. Organizations such as “Article 19” are interested in freedom of expression, freedom of the press, and support the right of access to information. They have been very active in this area, especially in the stage of law drafting. We also cooperate with organizations like Democracy Reporting International, the Organization for Economic Co-operation and Development and the United Nations Educational, Scientific and Cultural Organization to consolidate the right to access information and support democracy.
LA: But we cannot overlook that this selective funding is often a recurrent issue talked about among civil society and national bodies in that the financiers do not support a program unless it is in line with their agenda.
Hazgui: As long as the two parties are in agreement, where is the problem? As long as we know that our activity serves the objectives set out in the law governing the AIA – namely, promoting transparency and accountability, developing a culture of citizenship, and supporting citizens’ participation in public life – I do not see any problem with that.
The Culture Around Access to Information
LA: Do you think that Tunisian citizens are more aware of their right to access information? To what extent do you bet on traditional or non-traditional media?
Hazgui: It's basically a matter of culture and I think we have made an effort in this direction. Citizens are now more aware [that they can exercise] this right and are more informed about the AIA’s work. However, work must be continuous and diversified. In this regard, we have an awareness-raising video project in partnership with Democracy Reporting International. The video will be broadcast on television and radio channels to further introduce the AIA. We also have a program of cooperation with the Tunisian Society for Associative Radio Broadcasting.
We are open to everyone, but we count on community radio stations for their non-commercial and even educational role in spreading the culture of access to information, especially in remote areas that are in dire need of attention.
Keywords: Tunisia, Access to Information Authority, Imed Hazgui, I Watch