20/10/2021
More than a year has passed since the law on the right to access information was enforced in Morocco last March. The government portal for receiving complaints failed to refer these to the National Committee that was created under the same law and entrusted with the task of guaranteeing its application. The question is then why has access to information been obstructed for a whole year?
This investigation reveals that government sectors violated the Access to Information Law in its first year of enforcement in tandem with the declaration of the state of emergency due to the pandemic. This shows the government’s lack of transparency in managing the epidemiological crisis and in managing related procurement deals.
The investigator submitted three requests to the ministries of Health, 7 and 28 September, and Finance, July 2020, but did not receive any response to his queries.
In a judicial precedent, the investigator brought two cases one against the Prime Minister, and the Ministers of Health and Finance before the courts. This marks the first case in which a journalist uses the Access to Information Law in Morocco, by resorting to the Administrative Court to achieve justice.
The investigator exclusively obtained an official report that has not yet been published: This shows that the three requests made by the investigator are among 1,046 out of a total of 2,316 queries that were sent to various government departments through the electronic portal and were later dismissed once the statute on of the legal deadlines attached to them expired. This meant that 45% of the total requests sent through the national portal dedicated to receiving requests to access information remained pending. This comes despite the fact that the law sets clear deadlines to respond positively or negatively along with an explanation, or even to simply extend the deadline.
The report, which was presented to the office of the Prime Minister Saadeddine El-Othmani in early April of last year reveals that around 90% of the complaints of those seeking access to information have not been answered, and this is violation of the law.
Responses to requests for information should be processed within a period that does not exceed twenty working days. In the absence of a response, the applicant may submit a complaint to the head of the institution in question within twenty days following the initial expiration date. This should in turn, be examined, and an answer should be sent out within 15 days. Next, if thirty working days have lapsed without such answer, the applicant has the right to file a complaint to the National Committee.
During the Corona crisis year, there was an increased demand for health-related information This report has confirmed that three ministries, including the Ministry of Health, did not respond to any of the 67 requests it received between March 2020 and March 2021 through the national portal. The 112 requests that were sent to the Ministry of Justice and the 94 requests sent to the Ministry of Equipment, Transport and Logistics were equally disregarded.
The portal registered 2,316 requests addressed to various ministries since its launch March 13, 2020, and until March 11 of this year. Of these 1,270 were processed by providing the required information or by sending a refusal to process the request. The report does not reveal the number of requests that were indeed processed by providing information.
The journey of searching for information in the time of Corona started in the first months of the comprehensive lockdown that started on March 20, 2020. The required information was related to data on the epidemiological situation in the country and about the (procurement) deals of the Ministry of Health to acquire laboratory tests. The lack of response to this request led to judicial action.
On September 6 last year, the investigator filed a request through the national portal asking for data on the Corona virus analyses carried out by private laboratories since there was chatter that these labs “hid test results and did not include them in the database.”
The investigator did not receive any response to his requests when the legal timeline had expired.
During a meeting with parliamentarians on September 17 of last year, the Minister of Health confirmed the reports that some private laboratories were “deceptively” concealing test results.
The ministry did not only conceal information on the private labs analyses, but also withheld data on the purchase deals for rapid tests.
In the same meeting, the Minister of Health denied accusations of corruption in the acquisitions deal of two million units for 2 types of rapid tests with a value of 212 million Dirhams (approximately 24 million US dollars) . The Minister said that $10 price per test unit, was “the lowest price available on the global market.”
The investigator obtained the name of the French company, Biosynex, from which Morocco bought the rapid tests. He also tracked the company’s activities and sales operations regarding the rapid tests. According to an ARIJ investigation that tracked the Covid funds in Tunisia, the same company sold 100,000 units of the same test to Tunisia for only $5/unit.
The Access to Information Law calls for the early declaration of deals; Article (10) stipulates the obligation to publish “the results of public procurement deals, their winners and their value.” In reality, the Ministry of Health did not publish the details of the deals and refused to provide us with information about them.
On September 28, 2020, the investigator requested details on those deals through the national portal, but the ministry chose to ignore it, and the deadline for responding to the complaint addressed to the minister expired without any response.
The investigator was informed that the National Committee has taken note of his complaint in its efforts to complete the procedure for accessing the information without receiving a response, but on February 2, 2021, he was informed that he had the right to appeal before the Administrative Court.
In addition to the Ministry of Health, the investigator resorted to requesting information on the management of the Covid-19 fund from the Ministry of Finance. Morocco established this fund in March 2020 with $3.64 billion.
On July 19, 2020, the Ministry of Finance received the request through the electronic portal. All legal deadlines had expired without a response, and the complaint directed to the head of the National Committee through the portal was not dealt with even though it had been received.
The journey of searching for concealed facts continued as the investigator had to resort to litigation.
On January 17, 2020, the Administrative Court of Rabat received the first complaint against the Prime Minister Saadeddine Othmani and against the Minister of Finance Mohamed Benchaaboun requesting the complainant be granted the data on managing the Covid-19 Fund.
The court case viewed the failure of the Ministry of Finance to respond to the request to obtain this information as “a decision that lacks legitimacy.” It highlights that “the requested information is not categorized under the exceptions provided for by the law.”
The successive court sessions that examined the case revealed the first surprise when the ministry admitted that it withheld the Covid-19 Fund data from the investigator and could only justify its action by using Article (7) on the exceptions attached (in some case) to the Access to Information Law.
The Article on “exceptions” states that “all information related to national defense and the internal and external security of the state” is not covered under the right to access information. The same applies to “relations with other countries” and to the “financial and monetary policy” when the disclosure is likely to harm the national interests.
The Kingdom’s public prosecutor who represents the government before the courts used the exceptions article and delivered a reply memorandum to the court stating, “The information requested by the concerned party concerns the monetary, economic, and financial policies of the state and is covered by the exceptions.” Accordingly, he requested that the court, “reject the application.”
The investigator’s defense responded that “contrary to what the defendant claims, Article (7) of the law lists exceptions exclusively and openly links them to harming monetary, economic, or financial policies,” which does not apply in this case.
The memorandum clarified that the Ministry of Finance “has not proven the possibility of any harm done to the financial and monetary policy that could warrant the classification of the information under the exceptions.”
The court failed to address the core of the issue and stopped in its preliminary decision that the defense council reviewed June 4, 2021, on formalities (respecting the administrative procedure), claiming that the complainant did not show that he had filed a complaint to the Minister of Finance when his request was disregarded. Whereas, the verdict of the court of first instance itself confirms the submission of a complaint to the National Committee.
With this, three facts emerge: The first is that the portal retains only the last administrative procedure initiated by the person requesting information, and in this case this is the complaint filed to the National Committee.
The second is that the law does not provide for the possibility of submitting a complaint to the committee until a complaint to the concerned minister has been submitted and the response deadline has expired.
The third fact is that the investigator received a notification about the legal deadline to appeal to the judiciary system by the portal itself. It is impossible for this to happen until after the administrative procedure stipulated by the law has been completed, including the complaint directed to the minister, which the ministry did not deny.
Despite this, the court rejected the complaint in its “form” while another body in the same court was expected to examine a second complaint filed by the investigator on April 2 of last year: This was brought against the Ministry of Health and the Prime Minister after the request to access information on the Corona deals was denied.
As the investigator was preparing for the publication of this piece, a parliamentary report revealed the irony that the same legislators or parliamentarians who had set the law up are barred from accessing certain types of information, and this hinders their ability to hold the executive authority to account.
On July 15 of last year, the Lower House of Representatives published in a report the findings of the parliamentary review that investigated the transparency of the Ministry of Health’s management of the procurement deals it concluded in light of the Corona pandemic. The report stated that the parliamentarians “were not able to study the real cost of medical supplies and equipment at the center of the deals, mainly due to the lack of response by the ministries of health and finance to supply the necessary data.” It states, “It was not possible to determine what the Moroccan public finance has lost as it was impossible to determine the real or presumed cost of the purchases made by the Ministry of Health and whether they complied with being cost efficient when it came to that deal.”
When the Ministry of Health ignored the request of the investigator to obtain details on the deals, he submitted a complaint to the administrative court. The parliamentary report confirmed that “the Ministry of Health concluded negotiation deals with 45 companies without licenses,” which the parliamentary report considered “an explicit violation of the law.” The report concluded that “this action would expose the health and safety of patients, medical cadres and the general public due to the risks of acquiring products from companies that operate illegally."
Along with other journalists, the investigator was impacted by the health emergency status in the country and detected that the freedom of media outlets during the Corona virus crisis was undermined while the government ignored his requests to access information.
In a survey of 200 Moroccan journalists, 83% of the respondents said that the health emergency status “affected their performance.” The survey included 60.5% male and 39.5% female journalists, those are distributed as follow , electronic media 59%, print media 21.5% and audio-visual media 19.5%.
Of those whose work was impacted by the declaration of the health emergency status, 40.7%, believe that their movement was limited while 15% said that the emergency status prevented them from reaching their sources. 11.4% said that government measures prevented their access to data.
If 94% of Moroccan journalists were aware of the enforcement of the Access to Information Law, only 27.5% of them resorted to using it.
The results of the survey showed that 50.8% of Moroccan journalists who used the Access to Information Law submitted their requests through the national portal.
The relevant state institutions did not respond to 58.3% of the requests, and 90.3% of these were “ignored” while less than 10% received an unequivocal rejection of their requests.
Despite these rejections, 100% of those who filed the requests did not resort to courts for redress.
The survey showed that 27% of the journalists whose requests were rejected expressed their lack of “trust in the rulings of the judiciary system,” and 17% of them said that lawsuits make them enemies with their sources. More than 50% of those whose requests were rejected said there were multiple reasons that made them prefer not to go to court, but they did refrained from explaining their reasons.
The mystery of the failure of the committee for the right to access information in responding to people seeking information remained pending until we confronted the head of the committee, Omar El-Saghroshni. In an attempt to absolve the committee from responsibility, El-Saghroshni said that receiving complaints about the committee through the portal is a “mistake” and added, “We asked the Ministry of Administrative Reform to stop this because we have nothing to do with the portal.” He continued, “The electronic portal designed to receive applications was created by the administration, and it should not direct complaints to the National Committee.” The investigator confronted the head of the committee with the details of the lawsuit he had filed against the Ministry of Finance to which El-Saghroshni reacted with, “How can you go to the judiciary system without submitting a complaint to the committee?” The investigator responded saying, “I did file a complaint indeed, and the court has been looking into it for weeks. I cannot take responsibility if you were not made aware of it as the portal notified me that you had it and did not respond to it.” The head of the committee said, “We must look into the legal status of the portal, then.”
Initially, the issue seemed incomprehensible: How can the national government portal receive complaints addressed to the committee when it is not getting them? We had to meet up with Hatim Mouradi, the official in charge of the portal who is also the head of the Modernization and Innovation Programs Department at the Ministry of Administrative Reform. Without hesitation, he said, “We stopped the forwarding of complaints addressed to the committee,” and he stressed that “the committee has not processed a single complaint filed through the portal during the first year of the enforcement of the law.” Mouradi said, “Receiving complaints addressed to the committee during the first year of the implementation of the law was an error since the committee was not able to track the complaints addressed to it.” He added, “It really was an error and a technical issue: It is a loophole in the portal.” The official in charge of the portal confirmed, “There was no follow-up on the interaction of those designated with the task of responding to requests.” He added, “What we do is write to the ministries to notify them of the number of unprocessed requests, and we communicated with the Prime Minister about evaluating the administrations’ responses to the requests.” This means that for a whole year the portal continued to receive citizens’ complaints addressed to the committee without actually referring them to it or providing alternatives for the complaints. Instead, citizens get notified that they would not receive a response, which allows them to initiate administrative litigation. The citizen assumes that he has completed the procedure for accessing information. This was the case with the investigator who resorted to the court which deemed he had fulfilled the condition of submitting the complaint to the committee when in reality it was never received. This means that the path to accessing information in Morocco got stuck in a loophole unintentionally for a whole year.