Let’s assume you are a citizen of a Latin American country that has recently enacted a freedom of information (FOI) law. This is a likely situation; all but three Latin American countries have implemented some type of FOI measure over the last decade (with the exception of Costa Rica, Venezuela, and Paraguay). If your law is any good (which most are), it should empower you with the right to ask and receive information from government on most everything, barring certain standard exceptions. If it’s a good law, it also obliges your government to put certain important types of information online. If you happen to be in Brazil, like me, you can ask for your information in machine-readable open formats. According to the Center for Law and Democracy’s Right-to-Information Rating, Brazil’s law is among the fifteen most rigorous in the world.

By, Gregory Michener

Endangerment and Discrimination

Let’s also assume that you, citizen, know about serious corruption going on inside your city government and you want to do something about it. The problem is that whatever information you ask for using the law – the sort of information that may prompt an investigation by higher authorities, for example – you must provide your name and social security number (CPF) to the (dangerous) local authorities. This information can cost you your personal safety, or that of your family. What do you do? You probably do not make the request in the first place.

The need to provide a veridical name and identity number is required by only five of Latin America’s 14 freedom of information measures: those of Brazil, Ecuador, Nicaragua, Panama, and Peru. Of these laws, only two appear to be actually operating with minimal functionality – those of Brazil and Peru. Given the challenges of making FOI laws work in the first place, why impose obstacles such as the necessity to self-identify?

Let’s assume a milder hypothetical situation. The water your building receives from the city is dirty. You file a FOI request with the local water authorities and the relevant regulator. The information officers in these agencies receive your request and Google your name – out of innocent or calculated curiosity. Based on your Facebook profile and the fact that there is nothing else about you on the internet, they guess you are a ‘nobody,’ and answer with only basic, incomplete information that requires little effort on their part. Now let’s assume you’re a journalist from a powerful news organization. After the information officers receive your request and Google your name, they provide detailed information because they fear that lesser information will prompt you to launch an appeal and make the agency look bad.

What Type of Fundamental Right Requires Self-Identification?

If at all possible, government officials should not be able to discriminate based on a citizen’s identity, as illustrated above, nor should they be given the opportunity to intimidate a citizen. In effect, the obligation to provide one’s identity to exercise a fundamental right – the right to information – strikes a dissonant chord with international norms and national constitutions. In most countries with better practice laws, using your own identity is optional. You can provide an email like mickeymouse@hotmail.com and that is all you need. Why is a social security number necessary to exercise a fundamental right? This obligation is legally equivalent to having to register your social security number before assembling a group of friends in a public place or writing an editorial for a newspaper. These rights – the right to assemble and the right of freedom of expression – do not require social security numbers, so why does the right to information?

The need to eliminate the need to self-identify is urgent, particularly so in Latin America and other developing regions. Unprofessional administrators, patrimonial governments, and administrations infiltrated by criminal organizations present serious risks to the practicability of freedom of information rights. It is ironic that the obligation to self-identify renders the governments most in need of public scrutiny – such as those involved in illegal activities – the least likely to be brought into the light of day.

Googling Requesters and Intimidation Tactics

All of the above claims, about intimidation, Googling requesters, and differentiated responses based on identity, come from my experience in Brazil or my research abroad. In the case of Brazil, it is a well-known fact that many municipal governments – particularly outside of the larger cities – are associated with paramilitary organizations that run protection rackets or drug trafficking businesses. Similar situations occur in parts of Colombia, Guatemala, Honduras, and Mexico, among other countries in the hemisphere. In a conversation with the former Director of the Regional Alliance for Freedom of Information and Expression, Karina Banfi, it became clear that the need to self-identify is not an isolated problem; it is a generalized intimidating mechanism that it is retarding the use of laws throughout the region.

A member of a Rio de Janeiro-based nongovernmental organization told me a sad story. The organization was conducting transparency evaluations of a town on the outskirts of Rio de Janeiro, but the initiative had one major flaw: citizens refused to participate. Citizens knew knew that those in government were crooked and dangerous, and the need to self-identify dissuaded them from collaborating in the transparency audit.

FOI often meets with hostility from public administrators, even in the most advanced democracies. The antagonistic relationship between public servants and requesters is as unfortunate as it is well documented – I even wrote a white paper that briefly examined this dilemma, before the Brazilian law was enacted in 2011. The important question to ask is why we design laws that give public servants a target for their antagonism. My students – many of them public administrators – tell me that Googling requesters is common practice before processing a FOI request. They also tell me that they try to provide requesters with as little information as possible, which depends on their identity.

Many public administrators have strongly negative feelings about FOI laws. In some instances, this negativity appears to be the result of a culture where the state historically reigned supreme and is now supposed to be at the service of citizens. The obligation to self-identify implies the following question: “if you’re going to question the state, then the state has the right to question you. Who are you, and what is your grievance, anyway?”

In the case of Rio de Janeiro state, this sort of “state regarding” attitude (as opposed to ‘public regarding’) is taken to the extreme. Not only does a requester have to self-identify, but s/he cannot send out an official request electronically. The requester must fill out a request form and present it in person, then s/he must sign a disclosure form that warns against the misuse of information at the risk of criminal proceedings. This is not just irritating officiousness, it is downright intimidation. If taken to extremes, the misuse of any information – whether it be governmental or not – can always lead to criminal proceedings in Brazil. This fact begs the question of why government should warn citizens about ‘misusing information’ only when they want to scrutinize government. If misuse of information is a generalized concern, why not conduct public awareness campaigns? Clearly, these are intimidation tactics.

Intimidation is not restricted to official procedures, however. A fellow researcher – who focuses on one particular federal policy area – was told by officials in his policy research area that he would have access to leading policymakers so long as s/he did not make any FOI requests. The antagonism public servants may feel towards requesters is perhaps inevitable, but it is not inevitable that this antagonism be directed and targeted. The obligation to self-identify makes targeted antagonism possible.

In Conclusion

As far as I know, there is no movement to reform or remove the obligation to self-identify from statute. Ironically, Panama’s law just underwent a serious reform in 2013 (it was previously ranked among the worst laws in Latin America – it is now ostensibly among the five best), but the obligation to self-identify was not taken out of the law. The key to making FOI laws work, and to improving accountability in government, is to instill in citizens the habit of questioning government policy. If FOI laws intimidate citizens, we will never get to this point. The use of FOI laws is not only critical to fostering accountability in general, but it is also critical to pressuring governments to perfect access rights. No law is born perfect, and efforts to improve laws are especially critical in regions where political cultures are not necessarily amenable to political freedoms in the first place. At least not yet.