Morocco: Analysis of the Draft Law on the Right to Access Information
|Publication Date||22 April 2013|
|Cite as||Article 19, Morocco: Analysis of the Draft Law on the Right to Access Information, 22 April 2013, available at: http://www.refworld.org/docid/519dd5874.html [accessed 16 January 2018]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
On 1 July 2011, Moroccan voters approved a new Constitution that introduced, for the first time, a guarantee of the right of access to information held by public bodies. On 26 March 2013, public consultations were opened on a Draft Law on the Right to Access Information (Draft Law), which aims to give effect to Article 27 of the 2011 Constitution.
ARTICLE 19 welcomes the publication by the Moroccan government of the Draft Law. In order to contribute to the national debate on the law, we produced a detailed analysis on the Draft against international freedom of expression standards.
ARTICLE 19 commends on a number of positive features of the Draft Law, including:
a strong focus on proactive disclosure of information,
applicability to a wide range of public bodies and private entities which perform public functions;
a relatively simple procedure for requesting information; and
a dedicated administrative appeals body - the National Commission on the Right of Access to Information.
However, the analysis finds that a major weakness of the Draft is the regime of exceptions, which is grossly overbroad and has rightly attracted significant criticism.
ARTICLE 19 recommends that the Draft Law is revised to meet the international standards, in particular:
The right to access information and documents should not be limited to Moroccan citizens and legal persons, but be granted to any person (or legal entity) regardless of nationality.
A new provision should be added to the Draft Law, stating clearly that no person shall be required to provide a justification or reason for requesting any information.
All persons should be permitted to file a request orally, not only those who are unable to do so in writing.
If a request is not clear or an applicant seeks assistance, public bodies should be required to help the applicant formulate a sufficiently precise request free or charge.
The Draft Law should allow requesters to specify a preferred form in which to receive the information. This preference should be respected, unless there is a compelling reason not to.
The exceptions regime of Article 19 of the Draft Law needs to be significantly overhauled. All exceptions should be made subject to a substantial harm test and public interest override. The protected interests should be defined more precisely and narrowly, and only legitimate interests should be protected.
The Draft law should ensure the independence of the National Commission on the Right of Access to Information which should be vested with appropriate investigative powers, in particular the right to order the production of evidence, to examine any piece of information whose disclosure is being sought, and to compel witnesses to testify.
Article 35 of the Draft Law, which threatens civil servants with criminal sanctions for releasing information, should be deleted.
ARTICLE 19 hopes that this analysis will be helpful in discussion on final version of the Draft Law. We also stand ready to provide further assistance to legislators, legal experts and civil society in this process.