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