In societies, information is one of the cornerstones of peaceful coexistence. It is essential in relations between different parties, and it is equally essential and important in the individual’s relationship with the government. The right to access information is among the most important cornerstones in discussion about emerging democracies, and good and transparent governance in developing countries, effectuating the universal human rights agreements and ensuring their application to every person, and effectuating the role of citizens in combating and resisting corruption. The Tunisian Constitution enshrined the right to access information in Article 32, which stipulates that “The state guarantees the right to information and the right of access to information”. This article –which appears in the second chapter in the context of rights and freedoms– elevated Tunisia to an important rank among the countries that legally endorse open government.
The first sign that this right would be enshrined appeared following the revolution with the promulgation of Decree No. 41 on May 26, 2011. This decree pertained to the right to access the administrative documents of public institutions and was amended by Decree No. 54 on April 11, 2011.
However, civil society –represented primarily by the rights organizations and political parties– criticized the limited applicability of said decree. It did not contain a comprehensive definition of information, the processes for accessing information were convoluted, and there was no specialized body to ensure that these processes function properly and that the right [to access] is respected. Subsequently, the constitutional discussions witnessed a drive to endorse the right to access information in the Constitution and thereby elevate it to the status of a basic right. The desire for liberation from dictatorship and from obfuscation, deprivation, and a lack of transparency then translated into a need to employ mechanisms to effectuate the basic rights stipulated in the Constitution, including the right to access information, which was consecrated by Organic Law No. 22 on March 24, 2016.
Although the right to access information has become a basic right in Tunisian law, entrenching it in the Tunisian legal system first requires striking a balance between it and the other basic rights, on the one hand, and developing the necessary mechanisms to effectuate it, on the other hand.
In this context, the aforementioned law defined its goals and put forward the most important concepts and enforcement mechanisms by establishing the Commission of Access to Information (“Commission”) and defining its powers.
The Goals of the Law
The law defines its goals in its first article. This article guarantees the right to access information to every natural and legal person in order to achieve transparency and accountability, particularly with regard to the administration of public services; to improve the performance of public services and enhance confidence in the bodies subject to the law; to promote public participation in the development of public policies and in their monitoring and evaluation; and to encourage academic research.
The duty to provide access to information encompasses all public bodies, including the president’s office and its bodies, the prime minister’s office and its bodies, parliament, the ministries and public institutions, the Central Bank, the constitutional bodies, the independent public bodies, persons under private law who administrate a public service, and organizations and bodies that benefit from public funding.
To achieve its goals, the law subjects all of these bodies to a duty to publish information.
The Definition of Access to Information
In Law No. 22, the concept of access to information has two discernable shades of meaning:
The bodies concerned are obliged to publish, of their own accord, information relating to the services that they provide to the public. Hence, providing access to information is, for these bodies, a duty. The substance of this duty is specified in article 6. It includes periodically putting information at the public’s disposal in a useable manner. It also includes updating the information, for outdated information could undermine the basic goal of establishing transparency. According to Article 12, the bodies must also provide the information in the form requested (e.g., a paper copy) or, if not possible, in the form available; and
Every natural or legal person who does not possess the information has a right to request access to it.
The information, on the other hand, is all recorded information –irrespective of its date, form, or receptacle– that is produced or acquired by the bodies subject to the law. Paragraph 2 of Article 3 suggests that the information could either originate from the body itself or be externally-sourced information that the body handles and uses, and is therefore obliged to put at the public’s disposal.
In this regard, the Tunisian law broadened the definition of the accessible information and deemed access to information stored electronically, on paper, or in a database possible under all circumstances. This is evident in the generality of the expressions used in the text. Accessing information is possible irrespective of its form or receptacle, and even if it has been archived.
The Limits on Accessing Information
The legislature defined the criteria for exercising this right. As in the case of all rights, the other basic rights needed to be considered so that the frameworks for exercising the right to access information could be established and absolute access –which could endanger both the community and individuals– could be prevented. The legislature thus stipulated the limits on access to information in Articles 24 and 25 of the law. It deemed public security, national defense, and international relations to be among the priorities that require special protection and confidentiality.
The legislature also deemed that the right to privacy protection –a right guaranteed in Article 24 of the Constitution– trumps the right to access information. Hence, information cannot be requested or put at the public’s disposal if it relates to people’s private lives.
In the same vein –and in order to help ensure the efficacy of the right to access information– Article 25 stipulates that information may not be accessed if it relates to the identities of whistleblowers.
The legislature thus provided clarifications of the priorities that constrain the absolute power to access information and simultaneously tried to present a ranking of the basic rights based on their importance so that there are no clashes between them. It thereby attempted to strike a balance between the various rights in order to preserve the unity of the community as a whole.
Persons Who Enjoy the Right of Access
Notably, the legislature granted the right to access information to all natural and legal persons without any additional clarification or detail. The issue is the nationality of the person requesting the information, for the law’s general phrasing does not require said person to be Tunisian. The question of whether the administration should supply information to a foreign investor –whether a natural or legal person– who requests it therefore remains open.
The law is very new, and its applications will perhaps provide an answer to this question.
The Commission of Access to Information
To effectuate the right to access information and ensure that it is properly applied and respected by the bodies concerned, the legislature endeavored to establish a commission that monitors the processes and mechanisms that enable said access. Article 38 of the law stipulates that the Commission shall settle the cases brought before it, as well as publish its decisions and follow up on these bodies’ obligations to provide information of their own accord. The Commission’s mandate also includes preparing, in cooperation with civil society, awareness-raising programs aimed at spreading a culture of information access.
In this context, we must note that the Commission’s role is very effective. The right to access information can only be effectively entrenched if the Commission ensures that the people entitled can exercise it. The idea of access to information is very new to Tunisian society and could face difficulties in application. These difficulties could stem from both the bodies subject to the law and from the parties concerned, which may be unaware of the right or neglect to request its application, lest their request be rejected.
The 2016 law recognized a long-awaited right and turned Tunisia into a country distinguished by its modern laws that guarantee human rights. Articles 30 and 31 thereby granted the Commission the power to examine appeals that persons who enjoy the right file against rejections issued by the bodies concerned, as well as to impose its decisions on said bodies.
To ensure the right to litigate on two levels, the legislature allowed a person whose request for information is denied by the Commission to lodge an appeal in the Administrative Court within 30 days of being informed of the decision.
The Role of Organizations in Promoting the Right to Access Information
Civil society played an effective role in instituting this law and in consecrating the right constitutionally. Perhaps the most important active component was the Al Bawsala organization, which consolidated the idea of “open government” and advocated effectuating it within the Constituent Assembly after the promulgation of Decree No. 41 on May 26, 2011. When confronted with the refusal to incorporate a number of articles guarantying transparency into the Constituent Assembly’s internal statute, the organization –along with the Nawaat organization– referred the issue to the Administrative Court in an excess of authority case on August 29, 2104.
On June 10, 2015, the Administrative Court issued rulings on the appeals filed. It partially annulled the Constituent Assembly’s decision to refuse to allow access to information or publish the minutes of the general sessions and the committees’ sessions on its website.
Even though the decision was issued on the basis of the 2011 decree and prior to the promulgation of the aforementioned law, it was a bold decision signaling a positive turn by the courts towards supporting transparency and putting the right to access information into real effect.
With the promulgation of this law, Tunisia takes the first place in the Middle East and the 95th place worldwide with regard to access to information. That the access occurs without charge may be an important factor encouraging individuals to exercise their rights.
The passing of the law on access to information in Tunisia is evidence of a legislative desire for reform, development, and promoting transparency. This desire is confirmed by the universalization of this right and the ability to demand it in the context of both public and private institutions. Although there is a requirement to publish the law, raise public awareness of it, and involve the public in the proper administration of public utilities via the monitoring of said utilities, efforts must still be intensified so that the law does not remain ink on paper.
This article is an edited translation from Arabic.
 See: Opengov: www.OpenGov.tn
“Transparency and Citizen Participation in State Affairs” is an initiative launched by a number of organizations, the most important of which is Al Bawsala. Al Bawsala actively and diligently participated in the development and passing of the March 24, 2016 law.