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Opinions of Thursday, 15 September 2011

Columnist: Ameyibor, Francis

RTI: Maximum disclosure; minimum exemptions

(A GNA feature by Francis Ameyibor)

Accra, Sept. 13, GNA – Ghanaian civil society activists through
the RTI Coalition has faulted some provisions of the country’s Right
to Information (RTI) Bill presently before Parliament and called for
their amendment.
The group in a statement said that a critical review of the bill
reveals that while Clauses 2 and 3 provide for proactive disclosure,
the information that should be proactively disclosed is rather
limited.
International RTI standards revealed that exemptions should be
narrowly formulated so as not to defeat the purpose and object of
access to information.
Therefore, Ghanaian Civil Society Activists through the RTI
Coalition recommends that all exemptions in the Bill should be
subjected to “a harms test”: That is to say, exempt information will
remain exempt where it is proved that the harm in disclosure is
greater than the public interest in disclosure.
This is vital to include as the Constitution specifically states
that the right to information is ‘subject to such qualifications and
laws as are necessary in a democratic society’. Hence the exemptions
need to meet this standard.
The Bill needs to do away with blanket exemptions as those
currently exempting all information in the office of the President,
the Vice-President; information relating to the cabinet, information
relating to law enforcement, public safety and national security. The
harms test should be applied to all exemptions.
While clause 18 provides a public interest override, it sets out
categories of public interest, and yet public interest may go beyond
the listed categories. Hence Clause 18 should be opened up (e.g. by
stating that “instances in which exempt information shall be disclosed
‘include the following’) and not restrictive.
TIMELINES WITHIN THE BILL
In an interview with Ghana News Agency, Nana Oye Lithur,
Executive Director of Human Rights Advocacy Centre said one of the
principles of the right to information is that information requested
for from a public body should be provided in a timely or expeditious
manner.
This is in recognition of the fact that information is needed
for a specific purpose within a specific time. The times stipulated
within the Bill defeat this principle as well as the right to
information.
She said the twenty-one working days in which officer shall
notify one of decision on application (Clause 23(1); 14 days within
which to give access (Clause 23 (3) (a); 21-days working days
extension at the discretion of the officer (Clause 26) and 3-months
extension where the Minister so permits; 30-days within which to
notify the applicant on the decision on extension (Clause 26 (3) need
urgent review.
In addition, to these long time lines, applicants need to give a
reason for the application when it is urgent, Clause 1 (4) in the
Bill, stressing that “this is unreasonable considering that it is the
duty of the government to avail information and one should not give a
reason for exercising this right”.
THE TIMELINES IN THE BILL NEED TO BE SHORTENED.
Nana Oye Lithur therefore suggested that the 21 working days
within which the information officer should decide whether or not he
or she will give you the information should be done away with.
She said upon application, the Information Commissioner should be
given 10 working days to handle the application. The 30-day time limit
to notify the applicant under Clause 26 (3) of the Bill is
inconsistent with Clause 26 (2) of the Bill; Revise Clause 26 (3) of
the Bill.
INCLUSION OF PRIVATE BODIES
According to Mr Akoto Ampaw, a Private Legal Practitioner, the
scope of the Bill is rather limited. It should be a law that applies
to all Public Bodies and not government agencies (as it currently
provides).
The term ‘government agency’ is too restrictive and excludes
private bodies and chieftaincy institutions. The preamble should
replace the term ‘government agency’ with ‘public body’ and add the
term ‘private body’ alongside the term ‘public body.
He explained that private bodies which are, (i) owned, controlled
or substantially financed directly or indirectly by funds provided by
government, but only to the extent of that financing; or (ii) carrying
out a statutory or public function, but only to the extent of that
statutory or public function; (iii) companies that are engaged in
exploitation of natural resources should be brought under the Act.
He said the RTI law should also contain a provision which allows
for access to information from a private body where the information
may assist in the exercise or protection of any right.
The application may state the right which is sought to be
protected or exercised. There is no need for the Minister to come up
with a separate set of legislation for private bodies and yet the Act
can clearly and simultaneously stipulate the obligations of the
relevant private bodies.
He said under Article 36 (8) of Ghana’s 1992 Constitution, it is
clearly stated that: “the state shall recognise that the managers of
public, stool, skin and family lands are fiduciaries charged with the
obligation to discharge functions for the benefit respectively of the
people of Ghana, of the stool, skin, or family concerned and are
accountable as fiduciaries in this regard.”
Mr Ampaw noted that to the extent that they carry out public
functions and need to account to the people with whom they have a
fiduciary relationship, chieftaincy institutions or traditional
authorities should be included in the Act.
Hence, they should included as part of the public bodies within
the purview of the Act, but only to the extent of their fiduciary
functions –information on royalties received, how such monies are
spent among other issues.
He suggested that these institutions should also designate
information officers who would have the duty to provide such
information to the public.
FEES PAYABLE UNDER THE BILL
Ms Caroline Nalule, Africa Regional Co-ordinator of Commonwealth
Human Rights Initiatives in her contribution noted that fees payable
under the Right to information law should not be such as would in
effect deny one of his or her right to information.
Information to be accessed under the law should be available in
as inexpensive a manner as possible, the Bill is providing for
different unjustifiable fees to be paid and restricts access where
these fees are not paid.
An application shall be accompanied by a relevant fee: Clause 19
(1) (f) in the Bill. Where the information officer decides to give
access, the notice shall state the fees payable for dealing with the
application, Clause 23(4)(d).
Information can be denied where the required deposit or fee is
not paid, Clause 23(6).
Requires advance deposit if cost of dealing with application
exceeds application fees, Clause 25 in the Bill. If advanced deposit
is not paid, the agency can neglect request, Clause 25 (2) in the
Bill.
Denies applicant redress if deposit is unpaid, Clause 23 (6) in
the Bill. If application is rejected, applicant is still coerced to
pay without granted access, Clause 23 (4) (d) in the Bill. Minister of
Justice determines fees for search, retrieval, preparing information,
and postage, Clause 50 in the Bill.
According to her the fees that should be emphasised by the law
should be the actual cost of reproduction of the information
requested. “Availing information is a duty of the government and not a
business venture.
“One should not be required to pay a fee upon lodging or filing an
application a deposit fee”.
One should not be required to pay a fee in relation to time spent
by a body in searching for the information required. One should not be
required to pay a fee where information sought is personal
information.
The requirement to pay an application fee for public information
is absurd! The fees structure within the Bill should be consolidated
in one section as it is currently scattered and would create room for
abuse.
GNA
13 Sept. 11