Sunshine Is the Best Disinfectant

What happens when a government exercises absolute power, when there are no checks or balances, and when whatever a public official says becomes the official truth?

What happens when there is no free flow of information, when crucial events are kept under several layers of official protection from the public?

Easy. Secrecy and corruption flourish, and the public suffers the consequences of abuse of power.

As WPFC Chairman Richard Winfield (above) told a UN conference assembled to commemorate Press Freedom Day, China, and the rest of the world, at least in one instance, experienced the consequences of unlimited corruption for the sake of unlimited power.

Speech by Richard Winfield, Chairman of the World Press Freedom Committee, before UNESCO and the UN Department of Public Information, on May 1, 2008.

On behalf of the World Press Freedom Committee, I wish to thank our hosts on this World Press Freedom Day. We support the good work of UNESCO and the UN Department of Public Information.

In my many years as a practicing lawyer defending the press, I handled many access to information cases.

I suggest we consider a different way of looking at how important it is for governments to foster, to encourage the free flow of information it holds. Let us consider the reverse perspective, the converse, that is, when governments systematically block that flow. And then let us consider the consequences.

You may recall how one government, less than six years ago, handled the outbreak of the disease we now know as SARS. As we can reconstruct the facts, SARS, spread from on province to another and to another. The sickness and death toll began to mount. The cover up was working. Months went by. Not only the citizens but the international community and the World Health Organization were kept in the dark by the government about the scope and spread of this strange new disease. What the domestic press was permitted to report was to state that the appearance of the unknown virus was only a rumor and that there was NO epidemic.

SARS reached epidemic proportions and the government’s strategy continued. Soon SARS migrated beyond the country’s borders and citizens in neighboring countries began to fall ill and die. Only then did the government begin to abandon its strategy of censorship, denials, delays and underreporting. During the months of that strategy, SARS morphed from a local outbreak to a regional epidemic.

Let me offer the counterpoint to the example of blocking the free flow of information, and its consequences. Let us consider the secrecy of my own government concerning Guantanamo Bay, Abu Ghraib and torturing detainees. My government's abusive and shameful violations of international law and human rights, once secret, were ultimately investigated and exposed by an American press protected by the First Amendment.

Let me briefly describe how one American news organization, the Associated Press, a former client of mine, responded to the challenge of a secretive administration.

Reporters for AP ad filed several Freedom of Information requests with the Pentagon about the treatment of prisoners in Guantanamo Bay. The Pentagon stonewalled and denied AP's requests. Using the Freedom of Information law, the AP filed a series of three lawsuits against the Department of Defense. Over the strong objections of the Department of Defense, AP won all thee suits.

First, the federal judge forced the Department of Defense to provide the AP with the names of every prisoner, serial number, citizenship, age, height and weight. Why height and weight? AP had demanded that information to check out allegations that some prisoners had gone on hunger strikes.

Second, the judge forced the Pentagon to give AP the transcripts of the hearings of the military tribunals to determine the combatant status of the prisoners.

And third, the judge forced the department of Defense to give AP information about allegations by prisoners that they had been abused while in Guantanamo Bay. The Defense Department reluctantly turned over the information, but withheld the names of the alleged victims. AP is pursuing an appeal to get the names of these men.

These three successful FOI lawsuits suggest that a combination of three elements can work to pry information out of an Administration obsessed with secrecy: a decently-worked FOI state, an independent judiciary committed to the rule of law, and a free, independent and fearless press.

It is entirely appropriate that the UN and UNESCO sponsor this World Press freedom Day program. After all, at its very first session, the General Assembly in 1946 adopted Resolution 59(i) stating that “freedom of information is a fundamental human right and the touchstone of all freedoms to which the UN is consecrated.”

The same year, 1946, the United States enacted its first, and rather incomplete law, providing access to information held by the government. Now, over five dozen member states have enshrined this right in their basic laws or statute books. That represents less than a third of the UN’s membership.

There are, as you know, two major human rights courts, with supra-national jurisdiction, one for the Americas and one for Europe. Until recently, progress has been slow convincing those courts that, as a matter of convention law, member states have a positive obligation to provide information it holds to their citizens.

First, consider the Inter-American Court of Human Rights which sits in Costa Rica. Less than two years ago, in a case involving Chile, the Inter-American Court issued a landmark FOI judgment. For the first time, a prestigious international court held that the American Convention on Human Rights requires member states to provide information it holds to its citizens. It is significant that the case involved efforts by a Chilean environmental NGO to compel the Chilean government to disclose its plans for deforestation in the wake of the court decision. Chile enacted its first FOI law. That landmark decision is causing a ripple effect in the Americas.

The European Court of Human Rights, which sits in Strasburg, has been reluctant to follow the lead of the American Court. The European Court has so far declined to hold that the European Convention on Human Rights carries similar access rights. Part of the problem may be the Court’s backlog of 100,000 cases, among its 47 cases. A large majority of the 47 member states of the Council of Europe, however, grant their citizens such a right as a matter of national law.

The Council Committee of Ministers has begun to fill the vacuum left by the failure of the European Court to act. The Ministers’ Deputies are now completing a draft of a European treaty which is intended to bind all signatory nations to a regime of open access to official documents.

I spoke recently to one of the experts involved in the drafting process. He predicts that the draft Access to Information Treaty will be released late this year or early next year. Then the member states of the Council of Europe is well on its way to creating a legally binding, pioneering treaty which will give citizens of the member states access to information held by their governments.

Finally, is there is a single element that is crucial, indispensable to securing broad acceptance of treaties and laws that guarantee access, it is political will. A political will that understands that secrecy in government is the incubator of corruption. A political will that understands, t mix a metaphor and quote of a US Supreme Court justice, “sunshine is the best disinfectant.”