By Toby McIntosh
The UN agency that advocates for the right of information has amended its own access to information policy without public consultations and without following some of its own advice.
The UNESCO press office called amendments “a very technical update.” The primary change will give UNESCO more flexibility to release documents “in exceptional circumstances.”
However, UNESCO did not take the opportunity of the policy review to create an external review panel to handle appeals. As the UN’s leading voice on the right to information, the agency strongly advocates for governments to create independent oversight bodies. Similarly, a UN special rapporteur has urged UN agencies to have independent appeals panels.
UNESCO plays a major role on the right to information. Among other things, UNESCO:
- Sponsors the annual International Day for Universal Access to Information (IDUAI),
- Holds conferences and issues reports on right to information, and
- Conducts the global monitoring of the Sustainable Development Goal (SDG) on the right to information.
Modest Changes Made
The main change made to the UNESCO policy “introduces a public interest override,” according to an e-mail from the UNESCO press office.
This change brings UNESCO in line with standard practice at other UN agencies and international financial institutions.
The new clause allows UNESCO “in exceptional circumstances” to release documents that might be otherwise be kept confidential if doing so is in the public interest.
“Having a public interest override provision was a recommendation directed to UNESCO in a 2017 UN Special Rapporteur Report (A/72/350),” the press office noted.
The five-year-old report by David Kaye, then Special Rapporteur on Freedom of Opinion & Expression, did indeed point out that UNESCO’s policy lacked a public interest test. Kaye wrote, “If an organization does not provide a public interest test, its exceptions appear rigid and likely to result in barriers to transparency.”
Kaye further said, “As part of any public interest test, organizations should include a strong presumption that information about threats to the environment, health or human rights and information revealing corruption should be released because of heightened public interest in such information.”
UNESCO new policy appears to have generally followed this advice. It states:
UNESCO may exercise this right if it determines that the overall benefits and public interest of such disclosure outweighs the likely harm to the interest(s) protected by the exception(s). This may include situations in which the disclosure of certain confidential information would, in UNESCO’s view, be likely to avert imminent and serious harm to public health or safety, and/or imminent and significant adverse impacts on the environment. Such disclosure by UNESCO would be on the most restricted basis necessary to achieve the purpose of the disclosure. If the confidential information has been provided by or relates to a Member State or third party, UNESCO would make such disclosure only after informing the Member State or third party of its concerns and considering their plans to address and mitigate the potential harm involved.
No External Review Panel Created
However, UNESCO seems to have ignored Kaye’s advice when it came to another key topic, how it handle appeals when access to information requests are denied.
“The update streamlines and clarifies the roles and terms” for its Access to Information Panel, according to UNESCO’s press office.
But the panel’s structure still lacks the independence that Kaye suggested and which UNESCO urges on national governments. Also, it falls short of the example set by other international bodies.
The five-person panel at UNESCO is mandated to “assist the Director-General in monitoring the implementation of the Policy and to consider and review appeals relating to a request for information.”
The members of the panel are appointed by the Director-General. They are to be selected “on the basis of the following criteria: in-depth knowledge and thorough understanding of UNESCO policies, structures, programmes and operations at Headquarters and Field Unit levels; thorough knowledge of, and familiarity with, information disclosure and access to information policies; and proven ability to work with UNESCO partners.”
External Panels at Other International Bodies
Appeals panels at international institutions vary in structure, but many refer appeals to bodies made up of external experts. These include the World Bank, the UN Environmental Programme, the Inter-American Development Bank and the Asian Development Bank.
A 2022 Report of the Office of the United Nations High Commissioner for Human Rights pointed out that regional model freedom of information laws say governments “should ensure that the denial of a request to access information is subject to review by an impartial body established by law and/or by a court.” (The reference is to the Model Inter-American Law on Access to Public Information, pp. 31–32; and the Model Law on Access to Information for Africa, pp. 43–45.) The same report endorsed establishment of independent and impartial oversight mechanisms “with a mandate to monitor and report on the implementation of the right of access to information.
UNESCO is a strong supporter of having “independent administrative bodies” at the national level. The UNESCO-sponsored Tashkent Declaration of 2022 urged governments to “provide for an effective system of oversight, including by independent administrative bodies which are endowed with the necessary resources.”
A 2021 UNESCO report said that “countries that have a specialized oversight institution for access to information are likely to perform better than those without.” And as the monitor of national performance on access to information in the SDG process, UNESCO asks about the existence of independent oversight bodies in its annual SDG questionnaire .
UNESCO Overlooks Another Kaye Recommendation
Having made note of the Kaye report with regard to the value of a public interest provision, UNESCO seems to have ignored Kaye’s guidance for independent appeals panels.
He wrote that “[i]ntergovernmental organizations should also ensure an independent appeals process, protected against political interference and with the competence to make binding decisions.”
As an example, he cited the UN Development Programme’s system, which has a four-person review panel, appointed by the UNDP Administrator, including one from the UNDP Office of Audit and Investigations; one from the UNDP Ethics Office; one from a United Nations agency other than UNDP; and one from a non-governmental organization.
Kaye noted that the panel’s recommendations can be overruled by the UNDP Administrator and he took exception to that arrangement. “While the UNDP process involves strong elements of review, in general the decision-making authority should be lodged in an independent actor, not in the Administrator,” he said.
He said, “An independent body, such as an ombudsperson or commissioner, should be established to guarantee the right to information outside the chain of the organization’s normal authority.”
UNESCO Policy Made Without Public Consultation
Contradicting normal practice by international and national institutions, UNESCO modified its policy without any public notice or request for comment.
Most international bodies follow much more open procedures. Recently, for example, the Inter-American Development Bank conducted a year-long consultation process.
UNESCO adopted its new policies in 2022, without publicizing the effort, revealing proposed policies, or seeking public input.
It didn’t have a public consultation in 2017 either, when it first adopted its FOI policies and procedures. The press office said there was a “full consultation for all our member states for 11 months via a letter, sent by the Director General in March 2017.”
“This revision takes into account the experience of the first five years of its implementation,” according to the press office.
Nor were the final changes announced.
The only indication of the changes is a banner of the UNESCO FOI webpage that states: “The Policy version on this page is in effect since 22 February 2023.”
