A step toward transparency

After nearly a decade of preparation and debate, Lebanon’s Parliament finally ratified an access to information law in January. The country is consistently perceived as corrupt, according to global watchdog Transparency International, and Lebanon does not rate highly on the World Bank’s ease of doing business index. Enforcement of this new law might, over time, help improve those rankings, as well as the business investment environment and the quality of services the government provides to the public – all while coercing Lebanese authorities to be more transparent and accountable to the citizens. The law came into effect in February but, while this magazine has not yet put it to the test, its implementation could face some obstacles, and another law is still required to establish a key body crucial to define what information actually is accessible.

Obstacles

The law prescribes that virtually all government entities publish key documents showing indicators of each office’s performance, such as an annual report, orders and decisions, and office expenditures. Government offices are required by law to publish these documents online, but a number of these entities do not have websites, so it is unclear how soon they would be able to comply with this particular aspect.

The law also outlines a process by which specific information can be requested from the government (see Executive’s explainer and accompanying infographic below), detailing what is to be published and laying out the stages accompanying any request. The law is a welcome and positive step toward improving transparency and public accountability, civil society stakeholders tell Executive, but there will be challenges in requesting information and in appealing requests that are denied.

The law calls for the establishment of an anti-corruption commission (ACC) that would serve three primary roles. First, it would act as a watchdog by investigating allegations of corruption. Second, as an educational entity guiding public servants in filling requests and informing citizens’ awareness of their right to information. Third, it would serve as an advisory body consulting authorities on whether information should be disclosed or remain confidential. Establishing the ACC requires additional legislation that is still in subcommittee at the Parliament, according to Ghassan Moukheiber (see Q&A with Moukheiber below).

The fact that the ACC is not established as the access to information law goes into effect is a concern at multiple levels. Administrative records could be hard to track down because, based on observational evidence, they’re neither regularly digitized nor systematically archived.

Public officials, innocently or not, might not include pertinent information in the required documents to be published automatically on their offices’ websites, or they might deny requests simply because there is no culture of disclosure within the government, says Dany Haddad, a former consultant for the Lebanese Transparency Association, the local chapter of Transparency International. The law is “asking them to be like the private sector, where you have to report about your work, but the public sector has never done this,” Haddad says. The ACC would be instrumental in defining what information is disclosed, and without it in place there is no central authority deciding how narrowly to interpret information that is exempted from disclosure. The law lists broad categories where information would not be accessible, including: professional and trade secrets; private information relating to individuals and open court cases; minutes of confidential government meetings; opinions issued by the State Council; and state secrets relating to security, foreign relations or the economy. So, hypothetically, Banque du Liban (BDL), Lebanon’s central bank, could cite banking secrecy in a refusal to deny figures on its stimulus packages.

The ACC would also be the authority ruling on appeals to denied or ignored requests. But it is just one of several avenues of appeal, Moukheiber says. While the law prescribes that the State Council will rule on appeals of ACC decisions, it does not clearly outline where appeals should be heard in the absence of the ACC. “You always have to ask, what if we don’t establish the anti-corruption commission? Will this law be null and void? The answer is no,” Moukheiber says, adding that Lebanon’s common law of administration allows appeals of denied requests to be heard by the State Council and other courts. But, he admits, this could be open to interpretation. “I’d say you have three appeals possible: you can go to court; you can pursue disciplinary prosecution of administrative recourse to force the administration to give the document; or, after it’s established, appeal to the anti-corruption commission.”

That is worrisome, says Ayman Mhanna, executive director of the Samir Kassir Foundation. “My concern is that the law specifically says where the appeal should go,” a risk, he says, that could push the courts, or the State Council, to back away from ruling on appeals. “They could say ‘the law states the appeal should go to the [anti-corruption commission], therefore we cannot look into it’,” Mhanna adds.

How is it useful?

Access to information is not just about digging up the government’s dirt or exposing corrupt practices. “There is a very strong role for journalists,” Mhanna says, “very often people look at access to information only from a confrontational point of view. I think this approach is needed, but it’s not the only way to get results.” Access to information can be used in a very constructive and non-confrontational way to improve the quality of journalism, especially investigative journalism. Government-produced reports and statistics can inform long-term planning on public health issues, for example, by international donors and on-the-ground nonprofits providing health care access. Data measuring the sectors of the economy can also help foreign and local investors make decisions about where to put their money.

That information might take the form of up-to-date statistics, reports or internal government correspondence that could help business executives make decisions that impact their companies’ bottom lines long into the future. One of the complaints often voiced in Executive’s interviews with business owners, executives and managers is a lack of economic data (often because the government has neglected its collection or dispersion) across a number of indicators.

The law could help attract foreign investment and enhance the business environment by improving market transparency. Lebanon is ranked 126th out of 189 countries in the latest edition of the World Bank’s Doing Business report, a ranking of great concern, the minister of economy said in comments published last month in Executive. That the law requires government offices to publish annual reports, expenditures, decisions and reasons for making those decisions is, to the business community, less about corruption and more about indications of how those offices are governing and how they will in the future. More information could encourage investors to put their money to work in Lebanon.

While Transparency International measures the perceived levels of corruption, an index that consistently ranks Lebanon as a very corrupt country, there are no overall figures on the cost of corruption to the Lebanese economy. What is available are self-reported bribery payments by individuals seeking help in processing paperwork or securing other government services. Those bribes are tallied by Sakker el Dekkene, a local watchdog. The 2,543 self-reported cases of bribery since the organization began its tallies in 2014 totaled nearly $2.6 million. But that data gives only a limited picture of the scale of bribery and is only a first indicator of the total cost of corruption.

Then again, access to information and the substantial reduction of corruption are major tenets of goal 16 of the United Nations Sustainable Development Goals. “National and local institutions must be accountable and need to be in place to deliver basic services to families and communities equitably and without the need for bribes,” the UN says in response to why goal 16 matters. How does one do that? By exercising the right that Lebanon’s law now grants: to request information and hold public officials to account.

“The challenge of this law is implementation,” Moukheiber says. “But it is also a challenge for people to use it. For people who ask if it’s going to be enforced or not, I say that the proof is in the pudding, as the saying goes. You have to use your right, even if you’re denied. It is resilience that’ll lead us to the fulfillment of our rights.”

Q&A with Ghassan Moukheiber

E   What will be the role of the Anti-Corruption Commission (ACC)?

The Anti-Corruption Commission is responsible for a number of tasks, in addition to hearing appeals [if access to information requests are denied]. It receives complaints related to the implementation of this law, investigates and issues decisions. It advises competent authorities on every issue. So if you’re an administration, and you’re uncertain whether [a piece of] information has to be disclosed or is confidential, it acts as an advisor. It publishes annual reports about the implementation of the law. So it’s a watchdog on the law, and it contributes in education and raising citizens’ awareness on their rights to access information. It’s a watchdog, it’s an education entity, it’s an appeal [body] and it’s an advisor.

E   Who might be selected to sit on the ACC’s board?

The members will be nominated by third parties such as the courts, the bar associations, the auditors’ association and the banking association. So the Council of Ministers will appoint members from the ones that are nominated by third parties, and its operations will be totally independent.

E   What is the status on forming the ACC?

It’s in subcommittee and is going to justice committee. So it’s in an advanced phase of drafting. In the absence of the anti-corruption commission, it is the role of the prime minister to oversee the proper implementation [of this law] by all ministries because the prime minister is the coordinator of all ministries. You always have to ask, what if we don’t establish the ACC? Will this law be null and void? The answer is no. Because you always have judicial recourse.

E   Do you feel that now there is an appetite for reform?

It is necessary to complete our institutional build up for fighting and preventing corruption. [The ACC] is a tool to prevent corruption. And it’s only a tool, a necessary condition, but it is not a sufficient condition for fighting corruption. It is necessary to have transparency but that does not fight corruption all by itself. [The ACC] is not sufficient. It’s a piece in the puzzle, but an important [one].

E   Is there other legislation that would complement access to information?

There’s the whistleblower protection, which is ready. I was surprised to notice that it was sent to another committee, but we are trying to get it through as quickly as possible. We are also in the last phases of drafting a new bill, a modification of a current bill on tacit declarations and illicit wealth. That’s also almost completed and will be sent to the justice committee.

Explainer

The access to information law prescribes that virtually all government entities – including public administrations, judicial authorities (civil and religious), municipalities, state-owned enterprises, private companies managing public assets and government concessions such as Electricite du Zahle – are required to automatically publish: an annual report and the laws, decrees or decisions they issue and the rationale behind issuance; and expenditures on their websites. A number of these entities currently do not have websites, so it is unclear how soon those offices could comply with this aspect of the law.

The law also allows for specific requests of information held by the government. Any individual or organization can request access to view and receive copies of the requested information, paying only the cost of printing. Requesting information is a relatively straightforward process. The requester simply sends a letter describing the documents or data sought to the office(s) that might have the information. The office(s) must immediately acknowledge receipt of the request and has 15 days to deliver, but can extend the deadline for another 15 days to track the information down.

Accessing this information however, could be problematic on both ends. While the government is slowly scaling up digitization of administrative records and some public entities do already have records accessible online, they have not always been consistent with the physical documents.

Information requests relating to national security, foreign relations, financial and economic interests of the state and safety of the national currency, individuals’ private information, including mental and physical health records, and trade secrets can be denied under this new legislation. Following a maximum of 30 working days after submission the requester should either receive the information or be given a reason why the information was not available.

There are procedures for requests that are denied. An appeal can be filed within two months from the date of the request’s denial or after the 30 day period if the request has been ignored. The body responsible for hearing appeals of denied requests, the Anti-Corruption Commission (ACC), is not yet established (see Q&A with Ghassan Moukheiber). In lieu of the ACC appeals can be directed to the judiciary, but there are questions as to whether judicial authorities would hear appeals that the law specifically states should go to the ACC. The infographic illustrates the request and appeal process.

Inforgraphic by: Ahmad Barclay