Legal analysis

Morocco: Draft Law Regarding the Right to Access Information

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ARTICLE 19

28 Sep 2017

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On International Right To Know Day, ARTICLE 19 urges the Government of Morocco to review and revise its Draft Access to Information Law and provides specific recommendations for its improvement based on international standards on the right to information.

The Government of Morocco has undertaken two important initiatives in its efforts to improve transparency and governance in the Kingdom: The adoption of the Draft Law Regarding the Right to Access Information (the Draft Law) and the joining of the Open Government Partnership.

Both of these initiatives represent important progress towards ensuring that all persons in Morocco will be able to achieve their right to information. They also promise positive outcomes for Moroccan people and their government by increasing accountability, reducing corruption and improving public services.

However, as it currently stands, the Draft Law is incapable of achieving these goals and requires significant revisions to meet an acceptable level of adequacy under International law.

Summary of recommendations

(1) Clarify that the application of this Law should prevail in case of conflicting interpretation of other legislation or regulation restricting access to information.

(2) Add the presumption of disclosure as a general principle informing the interpretation of the Law.

(3) Amend the definition of “information” to include any information received by or under the control of the requested relevant body in the exercise of its activities.

(4) Extend the list of concerned bodies and institutions in the Law to include all those bodies that are owned or controlled – totally or partially – or funded – directly or indirectly – by public funds, to the extent of that funding.

(5) Extend the right of access to information to all natural or legal persons, regardless of their citizenship or residency.

(6) Revise all exemptions to ensure that they are all subject to the harm/public interest test before being invoked.

(7) Clarify that information that may disrupt confidential deliberations of Government and Cabinet meetings or confidential administrative research and investigation does not apply when the public interest overrides the harm of the disclosure.

(8) Specify that the exemption for the “protection of personal life” should only apply to private, personal information held by public bodies and should not apply to information regarding individuals acting in a public capacity.

(9) Extend the list of proactively published information to include the process for policy or decision making, public procurement, impact assessment studies and financial information.

(10) Remove restrictions on forms to submit a request and the obligation for requesters to provide their ID so long as they provide sufficient contact details.

(11) Establish a duty of the information officer to assist the requester to make sure the request for access is clear and compliant with the Law.

(12) Reduce the deadline for reply to urgent requests to a maximum of 48 hours.

(13) Ensure thatrequests are responded to, whenever possible, in the form preferred by the requester.

(14) Clarify that only reasonable reproduction fees can be imposed on the requester and such costs in any case should never exceed the actual costs incurred by the relevant body.

(15) Ensure that the information released is in an open data format for easy reuse.

(16) Allow the free reuse of information for any purpose under an open license.

(17) Review the structure, chair and composition of the Commission on the Right of Access to Information so as to strengthen its independence and autonomy from the Government and to avoid conflicts of interests with the commission in charge for the protection of private data.

(18) Eliminate the appointment of the civil society representative by the Head of the Government and increase the representation of civil society and media stakeholders within the Commission on the Right of Access to Information.

(19) Ensure that all officials who deliberately mishandle or damage, destroy, alter or refuse access to information in breach of the Law are subject to criminal and administrative fines, not just disciplinary measures.

(20) Clarify that anyone who has disclosed any information, including professional secrets, acting in good faith should be exempt from liability.

(21) Remove Article 29 which criminalises receivers of information for any alteration in the content of the information which causes damage to the relevant body or which results in its “use, reuse or harm to the public interest”.

(22) Include a provision requiring a specific public authority to review existing laws and repeal those that conflict with this Law.

(23) Adopt a separate law to specifically protect whistleblowers.

(24) The Government should engage broadly in a participatory consultation with civil society and citizens in the development of the New Action Plan (NAP). The NAP should include extensive commitments on implementation of the ATI law and adoption of other laws on whistleblowing and public consultation.

 

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