Controversy over exceptions: barriers to access to information in Tunisia

Badr Eddine Ouhaibi - Tunisia

In Tunisia, controversy has re-emerged over the seriousness with which sovereign and governmental bodies have dealt with constitutional provisions that provide access to information as a human right and to promote transparency and accountability.

The controversy intensified following a decision by the Tunisian Information Access Authority last August against the Central Bank of Tunisia, after it failed to provide the independent audiovisual communication authority with information on bank transfers to and from the accounts of associations and companies exploiting private television and radio channels.

The Central Bank of Tunisia was not an exceptional case in rejecting many of the demands of access to information, which is stipulated in the Constitution and opposed by the Court's preliminary judicial rulings. .

The Law of 2016, which established the Access to Information Authority, aims to guarantee the right of every natural or legal person to access information, with a view to promoting the principle of transparency and accountability, especially with regard to the Tunisian public utility, in order to improve its quality and enhance trust between the state and the citizen. And civil society.

Exception loophole
According to the head of the Information Access Authority, Al-Jazeera Net, Tunisian laws related to the transparency of administrative work and the management of public utilities are revolutionary in terms of democracy and structure of the public utility, due to the fundamental changes required in the transparency of the procedures and decisions of public institutions.

On the other hand, decisions and judgments issued by the Information Access Authority, which periodically publishes them on its official website, requiring public institutions to provide individuals or civil society institutions with information regarding their activities; shows that differences in interpretation of the legal text are behind their refusal to react positively to access demands. .

Failure to disclose information, lack of respect for deadlines, interpretations and procrastination, or, in some cases, partial response and disregard for the personal data of individuals, are among the most prominent breaches by state institutions in their handling of access to information, according to the Commission's reports.

In this regard, Kais Said, a professor of constitutional law and a candidate for Tunisian presidencies, told Al Jazeera Net that the government's and its institutions' handling of the law on access to information, especially in cases of refraining from providing data and information to a particular body, stems from the closed political thought that has existed for decades. There are still many who have not developed their ways of thinking.

He adds that the exceptions provided for in the Constitution represent legal loopholes used by institutions or politicians to evade the application of the constitutional text, and that cases brought before the Administrative Court regarding appeals against access to information are evidence of the possibility of multiple interpretations.

The exceptions provided by the Access to Information Act relate to public security, national defense or international relations data, information on the protection of personal data, intellectual property and the identity of persons who provided information intended to expose abuses and corruption.

Lack of potential
The Tunisian Constitution obliges administrations and publicly-funded institutions to designate those responsible for accessing information in departments, and to create and update Internet sites through which all relevant data on the workflow, decisions and documents issued by them or their branches are published.

On the other hand, Al-Hizqi believes that “the technical and human resources aspect of a number of public facilities continues to be an obstacle to their involvement in the transparency of the public service guaranteed by the Constitution”.

The number of cases referred to the Information Access Authority, whose decisions represent preliminary rulings, can be appealed to the administrative courts in Tunisia; 1,120 cases brought by individuals or civil society organizations against ministries, public establishments, and even political figures, with the aim of enabling them to obtain information and administrative documents.