Ensuring the Public's Right to Know in the COVID-19 Pandemic

"Transparency on the full extent of the crisis, and what is being done to manage it, is essential to ensure public trust, enable analysis of problems and discussion of new policy approaches, and ensure support reaches those who most need it." - David Banisar

Based on the experiences of journalists, civil society, and the public across the world, this briefing paper from ARTICLE 19 reviews access to information obligations that governments should maintain during the COVID-19 pandemic and proposes a list of information and data sets that should be proactively published by authorities to ensure transparency and accountability. It makes recommendations on how to release this information and which open government services are needed to facilitate the process.

ARTICLE 19 warns that the coronavirus pandemic could have a negative impact on global freedom of information (FOI), outlining specific examples. The freedom of expression organisation laments what is sees as a failure across the globe to ensure that the public is made aware of the important information they need during the crisis; for instance, telecommunications companies and new mobile apps are collecting information on people without revealing what they are collecting and how the data are being used.

The report highlights several threats to governments' obligations on access to information and public health under human rights law, such as:

• Emergency legislation that limits access to information about the pandemic and/or extends the deadlines by which governments have to respond;
• Public access to information not being prioritised while public services are reduced;
• Whistleblowers and journalists being harassed and arrested for revealing problems, accused of releasing "fake news" in the absence of government transparency; and
• Governments trying to limit criticism of poor decision-making or as a larger effort to restrict human rights or hide corruption.

ARTICLE 19 points out that, under the International Health Regulations, adopted in 2005, governments are required to provide information to the World Health Organization (WHO) in a crisis, without any equivalent obligation to inform their own citizens. The WHO can only the share this information with the public if they receive the information from additional sources. Even after several pandemics in the last two decades, the WHO has no guidelines on what states should publish, which has led to different definitions and criteria for reporting. In addition, the WHO's own access to information policy prohibits disclosure of information given in confidence or that "may adversely affect WHO's relations with a Member State or other intergovernmental organization" - without any consideration of the public interest and no external appeal.

The report explains why the right to information is important for fighting COVID-19. Secrecy is counterproductive, according to ARTICLE 19, because it can breed conspiracy theories, distrust, and challenges to public health efforts. The right to information is crucial for ensuring public awareness and trust, fighting misinformation, ensuring accountability, and developing and monitoring implementation of public policies aimed at addressing the crisis.

Maintaining existing openness rules requires paying attention to the following, as outlined in the report: right to information laws and procedures; public procurement; data protection and subject access rights; open meetings; open justice; whistleblowing; and private sector transparency regulations.

ARTICLE 19 argues that governments, civil society, and the media need to publicly share/publish the following during the pandemic:

• Public health data information around coronavirus cases, deaths, testing, facilities, drug trials, and contingency planning on a daily basis;
• The details of all contracts, grants, loans, support to companies, and other spending;
• The names and biographies of the members of all committees providing scientific, economic, or other advice to public bodies, as well as copies of all minutes of meetings, working documents, and advice to governments; and
• Governance, human rights, and law enforcement information.

In addition, ARTICLE 19 lays out standards of publication of this information, noting, for example, that:

• Public authorities should transmit and disseminate information through the most appropriate formats and means to reach different areas and communities. Particular attention should be given to communities without or with limited access to the internet; governments should also use other means of reaching those communities, including newspapers, message services, community radio, and via community groups.
• Governments must take extra measures to ensure that vulnerable communities are fully reached during the pandemic. They must develop special social communication strategies and appropriate means to reach them, including local and indigenous languages, taking into account audio formats to target illiterate persons. Public authorities should always respect and take into consideration the spiritual and religious beliefs, uses, and customs of the indigenous communities when designing and approving measures to prevent and mitigate the outbreak. They should specifically address these groups, ensuing the free, prior, and informed consent of the indigenous communities on the measures adopted to address the pandemic that are directly impacting their members.

Overall, ARTICLE 19 is calling on governments to:

• Limit delays in responding to FOI requests.
• Give priority to coronavirus-related requests.
• Provide electronic access for making requests and receiving information while physical requests are not possible.
• Proactively publish information about the outbreak and response.
• Ensure that oversight bodies and appeals processes are still operating.
• Maintain access to the courts for important FOI cases.
• Secure public access to information about crucial health and environmental laws.
• Maintain full records while staff may be working remotely.

In conclusion: "As we look forward to opening up our public spaces, offices and shops, we need to open up governments first to understand decision making, agree the best ways forward, and restore public trust. Otherwise, we may just end up back where we started."