Right to information: A matter of life and death during the COVID-19 crisis

The coronavirus (COVID-19) pandemic is creating public health and economic risks that cause serious alarm for citizens and governments alike.

To counter the spread of the virus, save lives and reduce the economic damage post-crisis, both individuals and governments are forced to take quick decisions, often under intense pressure and stress.

Good decisions require good information. For the public to be able to make informed choices, they rely on their government explaining its response to the extraordinary challenges of the coronavirus crisis with timely and quality information.

Yet, with the spread of the virus, more and more countries have announced restrictions to their citizens’ right to information, a human right guaranteed by several international treaties and by laws in some 120 countries. The reasons for doing so vary on a broad spectrum, with consequences no less diverse.

According to Article 4 of the International Covenant on Civil and Political Rights, when a country declares a public emergency, it can take measures that restrict particular fundamental rights, but only “to the extent strictly required by the exigencies of the situation”.

For example, it may be reasonable to ban mass demonstrations to stop the spread of the virus through a crowd. Failure to do so in Spain appears to have resulted in dire consequences.

The right to information is one of the rights that can be restricted, but the purpose should be the same as restricting freedom of assembly: protecting the right to life.

Two essential conditions must be met for such restrictions to be justified: the situation must amount to a public emergency that threatens the life of the nation, and the State must have officially proclaimed a state of emergency. When a country takes this step, it has to immediately inform other countries through the Secretary General of the United Nations on the details of and reasons for the restrictions.

Many governments have not formally declared a state of emergency and complied with their international law obligations to let other countries know (you can check whether you country has done so here). But, in practice, they still restrict fundamental rights and justify it with the COVID-19 emergency.

The governments of many countries heavily affected by the virus have reduced activities to a minimum so they can focus on critical state functions and keep public officials and the public safe. In these circumstances, the fulfilment of freedom of information requests may well be reduced, for the practical reason that there is no public official available to answer them. Mexico is one such example.

However, timely and accurate information on the spread of the virus, the public health measures put in place and other public safety issues can be a matter of life and death.

Even a government with reduced resources should prioritise collecting, organising and delivering information to its citizens. Requests for information related to the emergency should be answered within a very short time-frame. All relevant information should be proactively published simultaneously to the requests being answered.

Public officials working from home are not necessarily unable to provide information to the public. Unless the information management system of the authority is stuck in the age of purely paper-based administration, it should be possible to retrieve and provide information to the public. Moreover, those departments that are working directly on the crisis are likely to be in their offices, and in a position to share the information they are working with.

Even in total lock-down situations such as the one in effect in Italy, modern public administrations are able to collect and provide information. If they don’t, it is likely due to a lack of appreciation of the importance of freedom of information — not because of the crisis. The best quality legislation on freedom of information explicitly prohibits governments restricting information in order to cover up incompetence, inefficiency, maladministration, or to otherwise prevent public officials being embarrassed.

In an extended emergency situation, it is normal that public administrations make mistakes. Most countries have never faced a crisis comparable to the COVID-19 pandemic within living memory. Citizens can appreciate that very difficult decisions have to be made by elected officials and professional civil servants and that not everything will go smoothly right from the beginning. Far more damaging than mistakes, is the abuse of secrecy invoked during a crisis to hide outright abuses of power, especially in an already tense environment.

The public’s right to information has three components: to seek, receive and impart information. The last one is especially key when public agencies are not proactively or accurately informing citizens. Whistleblowers sometimes risk their careers, livelihood, liberty or even their lives to get information out, as Li Wenliang did, the doctor in China who tried to warn colleagues about the COVID-19 outbreak.

Building on a study by the University of Southampton, Reporters without Border argues that the scale of the COVID-19 pandemic could have been drastically reduced if the media in China had been able to report freely on the early spread of the virus.

In some countries, including Hungary and Thailand, journalists have been threatened with long prison sentences for presenting distorted facts that could hamper the success of efforts to control the pandemic. While there is an abundance of misinformation and disinformation about the crisis, such draconian measures set governments on a dangerous path. In practice, any journalist, politician or average citizen reporting on the government’s shortcomings in dealing with the coronavirus threat has to think twice before sharing what they know.

In Romania, press freedom advocates and the Organisation for Security and Cooperation in Europe have warned that entire reports and even websites could be taken offline under emergency powers, with no chance for appeal.

A better solution is to empower responsible media and civil society organisations with accurate, timely and up-to-date information.

The coronavirus pandemic is fast becoming the greatest global crisis since World War II. In many countries, it requires extremely difficult decisions and complex measures. Yet, in the area of freedom of information, there is not much difference between the current crisis and ‘peace time’ conditions.

Governments have straightforward international guidelines on protecting freedom of expression and information in times of crisis, some old and some new. The limits of emergency rule are also clearly spelled out. Many governments, often with the help of private companies, have made efforts to use freedom of information to help citizens.

Ultimately, our elected officials continue to have a choice between abuse of power and good governance.