Although the provisions of the Right to Information draft Bill instils wide ranging powers in the Right to Information Commission to deny information being divulged to the public, it also grants the citizens of the country to appeal if information requested is refused. However, still there are matters in contention in this draft Bill.
With the Right to Information Commission established, the Bill from Section 23 to Section 31 discusses and lays down provisions for the appointment of Information Officers and the procedure for gaining access to official information.
Section 23 (1) states that every public authority for the purpose of giving effect to the provisions of the Act, should appoint one or more officers as Information Officers, and within three months of the Act coming into effect, the Head or Chief Executive Officer of the public authority will not be operating as a public mouthpiece of the public authority.
The duty of the Information Officer according to Section 23 (2) would be to deal with requests for information and to render all necessary assistance to any person making a request to obtain the information being requested, for which under Section 23 (3), the Information Officer could seek the assistance of any other officer, he or she may consider necessary in the discharge of the duty.
Under the provisions in Section 24 (1) and (2), anyone desiring information should make the request in writing to the appropriate Information Officer using electronic means in which communiqué the particulars of the information requested are to be specified.
In case of an inability to make the request in writing, persons are also entitled to make the request orally, which will then be reduced to writing on behalf of the person making the request by the Information Officer.
Section 25 (1) reads: “An Information Officer shall, as expeditiously as possible and in any case within fourteen working days of the receipt of a request under Section 24, make a decision either to provide the information requested for on the payment of a fee or to reject the request on anyone or more of the grounds referred to in Section 5 of this Act and shall forthwith communicate such decision to the person who made the request. Where a decision is made to provide the information requested for, access to such information shall be granted within fourteen days of arriving at such decision”.
When a person makes a request for information in writing or verbally, the Information Officer could take a maximum of 14 working days to firstly come to a decision on whether or not information would be subject to the provisions laid down in Section 5 be provided or rejected. If the request is to be rejected, it would be communicated to the person who made the request 14 days after the initial request for information was made. If the said decision arrived at is to provide information, the Information Officer could then take another 14 days to communicate that access to information would be granted to the person making the request. This adds to a total of 28 days since the initial request for information had been made. This is a period of considerable length for the acquisition of information which few would pursue. Urgency in obtaining information has not been factored in.
Section 25 (1) also reads: “Provided that where the request for information concerns the life and personal liberty of the person making such request, the response to it shall be made within forty-eight hours of the receipt of the request”.
Section 25 (2) outlines that in providing the information requested an additional payment of a fee may be required, which would be in addition to the fee referred to in Section 25 (1). The Commission under Section 25 (3) reserves the right to determine the waiving off of the payment of a fee and any fee in addition to the payment.
Section 27 (1) reads: “Where decision has been made to grant a request for information, such information shall be provided in the form in which it is requested for, unless the Information Officer is of view that providing the information in the form requested for would be detrimental to the safety or preservation of the relevant document or record in respect of which the request was made”.
If the form in which information is requested would be detrimental to the safety or preservation of the relevant document or record in respect of which the request is made, this must be specified as a provision within this Act, as otherwise it could be construed as yet another way in which the State could withhold and refrain from giving out official information.
As noted in Section 28, where a request for information is refused by an Information Officer, the said Information Officer in the communication sent under Section 25 (1) to the person who made the request, must specify the ground or grounds on which such request was refused and the period within which an appeal against such refusal should be made and the person to whom an appeal against such refusal may be preferred.
Section 29 (1) reads: “Where a request made to an Information Officer by any person to disclose official information relates to, or has been supplied by a third party and such information has been treated as confidential at the time the information was supplied, the Information Officer shall, within seven days of the receipt of such request, invite such third party by notice issued in writing, to make his or her representation for or against such disclosure, within seven days of the receipt of the notice.
(2) An Information Officer shall be required in making his decision on any request made for the disclosure of official information which relates to or has been supplied by a third party, to take into consideration the representations made by such third party under subsection (1), and shall, where any objections are raised by such third party, deny access to the information requested for:
Provided however, the Commission may, on application made in that behalf by the person making the request, direct the disclosure of the information in question notwithstanding any objections raised by the third party against its disclosure, where the Commission considers that the public interest in the disclosure outweigh any damage that may be caused to the third party concerned by its disclosure.
(3) Notwithstanding anything to the contrary in Section 25, an information Officer shall within thirty days of the receipt of the request for information, and where third party concerned having been issued with a notice under subsection (1) has failed to respond within the time granted for making representations, make a decision as to whether or not to disclose the information requested for and give notice in writing of such decision, to the third party concerned”.
Section 30 reads: “Where access to any information has been granted by an Information Officer under this Act, no action or proceedings, civil or criminal shall lie against such Officer or the public authority concerned by reason of granting access to such information”.
Section 31 reads: “The granting of access to any information in consequence of a request made under this Act shall not be taken to constitute an authorization or approval granted by a public authority or the Commission, of the publication of such information by the person to whom the access was granted”.
Section 32 (1) discusses how a member of the general public may appeal against refusal by an Information Officer to divulge information. However, such refusal as according to the provision is governed by Section 28 (2), whereas Section 28 (2) was not to be found in the proposed Bill. Secondly, the appeal would be heard by the very same person who had initially refused the disclosure of information, which, in any case, is likely to be refused once more. The decision will have to be made within a month, which is likely to achieve the same result upon appeal due to the specification in the Act. This is unless Section 28 (2), which is absent in the draft Bill, specifies otherwise.
However, if the information is denied, the aggrieved person may still appeal against the second refusal to the Commission within two weeks of refusal in accordance with Section 33 of the draft Bill. The Commission could then affirm, vary or reverse the decision appealed against. This could be deemed to be a good provision, on the condition that such process is subject to the period of waiting until the second refusal is obtained. It is ideal that such an appeal to the Commission be taken up immediately upon the first refusal in order to hasten the process. This should be so, because Section 5 (4) requires the Information Officer to seek the advice of the Commission when encountered with problematic situations.
Due to the fact that the decision of the Commission too could result in the same, the draft Bill proposes that an aggrieved person may take the case up in the Supreme Court. This is by far the best provision, as the Supreme Court would act as an independent body free of influence, and may determine in favour of the concerned citizen. The cumbersome and elongated process of relentlessly seeking information finally reaches the ears of an independent Court of law, which may not merely choose to affirm, vary or reverse the decision but could also make any other order and compel the authorities to comply.
Section 35 permits another person to approach the Information Officers on behalf of the aggrieved party. Such permission is restricted only to the request for information from the Information Officers and the Commission if required, and may not be carried forth to the Supreme Court. The purported Section 36 requires the Commission to present frequent reports to the President, who shall in turn make copies of it to be placed before Parliament.
There appears to be a few mistakes in the draft Bill in terms of appropriate numbering, and an evident example is how Section 35 has been repeated twice instead of a Section 36. There is also another Section 37 soon after Section 40 in the Bill among other mistakes.
Section 37 finds an Information Officer who denies a request for information without presenting reasons, or refused a request made on any ground other than by Section 5 (1) or fails to make a decision within the specified time, guilty of an offence. Such an officer would be fined a sum of Rs 25,000 or imprisoned for a period not exceeding six months. It is contentious if this provision contradicts the immunity granted by Section 21 which protects the Information Officers who perform any act or omit performance of any act in good faith. If the parties proposing such a Bill claim that it does not, would the Information Officers still be protected by this immunity.
Section 38 purports to protect any officer or public sector employee from legal implications for disclosing information. However, such legal implications may not be sufficient to ensure protection of such persons in light of the major consequences that may follow to him or his family. Situations have been encountered before where persons or their families have been threatened and maltreated following stigmatizing remarks against politicians and other distinguished members of the public sector. A prominent example of that could be seen in the case of Law College student, Thushara Jayaratne who was allegedly threatened by Parliamentarian Namal Rajapaksa for exposing certain outrageous activities that took place during the Sri Lanka Law College exams. Jayaratne had to subsequently flee the country following death threats.
It is common knowledge that persons who disclose sensitive information are generally exposed to grave dangers from persons opposed to such disclosure. Therefore, mere legal protection may be insufficient. It is tantamount to providing sufficient protection to such persons from the other dangers that he or she may confront, especially when the proposed Bill compels any person to disclose any official information.
The proposed Bill possesses numerous flaws and sets forth a mechanism that does not satisfy the criteria of a good Right to Information Act as is in most other countries. Beginning with the denied list in Section 5, there appears to be several areas specified in the Act that limit the information being revealed to the public. The Act limits the disclosure of information to such an extent that, even accessible pieces of information can be denied by the Right to Information Commission. The limitation imposed by Section 31 which expressly states that the revelation of information is not consent to publish ought to be changed, as the media is the most appropriate mode of communication between public authorities and the people.
Every person shall have the right to hold opinions without interference or subject to restriction and the right to freedom of expression which shall include the freedom to express, seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice must be recognized within the context of freedom of information.
Continuing on Page 11
BY Ruwan Laknath Jayakody and Faizer Shaheid
Source: http://www.ceylontoday.lk/51-85619-news-detail-pravdas-dominion-right-to-information-act-of-2015-part-iv.html
Posted on Tuesday, February 24th, 2015 at 4:16 am