Covid-19 a contagion risk for right to information laws? – Karen Mc Cullagh

In recent months, governments around the world have sought to manage and mitigate the impact of the Covid-19 pandemic upon public health – it has a propensity to overwhelm health service provision – and to limit the impact of the pandemic on the economy in their countries.  As it is a novel virus, about which little is known, a uniform response strategy has not yet emerged.

Instead, countries have sought to interpret and apply World Health Organisation guidelines e.g. by implementing testing programmes and social distancing measures, and to learn from the experience of other countries about the effectiveness of implementing specific measures at different times.

The effectiveness of different strategies deployed by governments in reducing the spread and impact of the pandemic is contested at present.  Consequently, the media and public have quickly turned to information requests provisions in right to information laws seeking to access information to enable them to probe and challenge government strategies for managing the pandemic.  Yet, with the spread of the virus, more and more countries have proposed, and some have introduced suspensions or extensions to response timeframes in their right to information laws. This blog post compares developments in Brazil and Italy to illustrate two different rationales offered for the revisions: one pragmatic and the other political.

Pragmatic Rationale for Restrictions

A pragmatic rationale is that, public authorities should, during the pandemic, prioritise dealing with immediate public health concerns e.g. advising on and enforcing social distancing guidelines, co-ordinating delivery of personal protection equipment, and scheduling cremations, and grave digging operations; requests for information should, in most cases, be a less pressing concern.  Relatedly, as the pandemic disrupts and forces changes to working practices e.g. necessitating work from home practices, which can impede or slow access to information within organisations, the extension or suspension of time frames for responding to information requests is appropriate to reduce the burden on public authority employees.

To this end, Italy passed a decree Decree-Law No. 18/2020 of 17 March which contains a provision (Article 63(3)) permitting the suspension of all activities related to access to information requests unless they are urgent and cannot be postponed. However, a statement issued on 27 March 2020 confirmed that requests for information about the pandemic and health emergency are excluded from the suspension.  In effect, Italy has sought to maintain information rights albeit a reduced level of service even as it is ravaged by the pandemic.  A response of this nature is not viewed as problematic by the UN Special Rapporteur on freedom of opinion & expression; he has noted that “temporary disruptions may be expected” and will generally not constitute a violation of article 19 of the International Covenant on Civil & Political Rights, given the potential inability of staff to access their offices to locate information or meet in person or for hearings or appeals.

Political Rationale for Restrictions

However, a second rationale for suspending or extending time frames for responding to information requests is political considerations; for example, to obscure when a government has prioritised economic concerns over public health considerations.  In this regard, the Prime Minister of Brazil has arguably favoured ‘economy first’ approach during speeches in which he has described Covid-19 as a “little flu” or a “cold,”  and called it a “media trick or fantasy”.  He has repeatedly called on state governors to cancel social distancing orders put into effect to prevent the spread of the disease and urged Brazilians to return to work in defiance of advice from the World Health Organization and his own health ministry.

Amidst growing criticism of this approach by the media, political opponents, and increasingly, political allies and the electorate, he appears to have sought to temper criticism of his ‘economy first’ strategy by issuing Provisional Measure No. 928.

This measure proposed to prioritize responses to requests related to the pandemic, but it did not specify how this would happen, what prioritization criteria would be used, or indicate the timeframe for responding to prioritised requests.  And, even though the Brazilian Law on Access to Information already permits a public authority to ‘deny a request for access to information, if it does not have the capacity to respond,’ the proposed measure would have suspended, until at least 31 December 2020, deadlines to respond to information requests by public authorities primarily involved in the Covid-19 response, and other public authorities whose staff are subject to teleworking or quarantine measures and who must be in the office to respond to requests.  The measure also proposed to remove a right of appeal in respect of denied requests.   In effect, it would allow the public authorities to choose which requests to respond to or not, without having to offer any justification for the refusal to answer, and with no possibility of an appeal.   If implemented, the provision would limit the ability of individuals and journalists (acting in a public watchdog role), to question the veracity and sufficiency of preparedness claims, and make it more difficult to hold the government to account.  Unsurprisingly, civil society groups complained, and legal action was instigated, which resulted in the Supreme Court issuing an injunction  to temporarily halt this measure, and it is to be hoped that the measure will not now be passed by congress.

A contagion risk for right to information laws?

The contrasting approaches of the governments of Italy and Brazil serve as examples of how other governments could and should respond to requests to revise their right to information laws in response to the pandemic.   It is to be hoped that the Brazilian approach does not represent a contagion risk and that countries will follow the Italian example in continuing to uphold information rights to the maximum extent reasonably possible during the pandemic period.  More specifically, given the likelihood that the pandemic will continue and social distancing measures may need to recur for some time, the UN Special Rapporteur has it made clear that Governments should advise and assist their public authorities to develop approaches to enable them to continue to respond to information access requests in a timely manner during any future peaks of the pandemic.  And, once the pandemic is eventually brought under control, and countries return to normal, governments should prioritise full restoration of information rights; whilst a vaccination for Covid-19 may not be available for some time, the cure for political accountability ills already exists in the form of effective right to information laws.

Dr Karen Mc Cullagh, Lecturer in Law, UEA Law School, University of East Anglia