Sunday Times 2
Right to Information: Excitement in the air!
View(s):By Mathuri Thamilmaran
As citizens take their first steps towards obtaining information from Public Authorities (PA) with the operationalising of The Right to Information Act No. 12 of 2016 (RTI Act) on February 3rd 2017, there are many hiccups that are bound to arise. This is inevitable as other countries around the world take as much as five years to properly implement RTI legislation. So it cannot happen in six months in Sri Lanka. But the unprecedented public interest shown since February 3rd is good to see.
The importance of RTI comes from the fact that government and many other bodies use public taxes to provide public services. Therefore the public has the corresponding right to know how such money is put to use.
The Act has been long in the making. Initial attempts were made in 2003/2004 before other similar laws were enacted in South Asia. Unfortunately, those attempts were stalled due to a change of Government and it was only last year that the campaign promise of the Unity Government bore fruit.
The positives and the negatives
Despite the public interest in RTI, what we have also seen is that there does not seem to be a wide level of understanding. Throughout last week, RTI users eager to employ the Act have commonly reported to many PAs being unaware of RTI when they called by phone or physically went to those PAs. RTI help lines set up by public interest bodies have reported a large number of phone calls.
Positively however, some PAs have appointed information officers and even where they had not, were courteous in their responses though others were hostile. The Act provides that where an Information Officer has not been appointed by a PA, the CEO/head of that PA automatically becomes an Information Officer. But RTI users had to end up educating the public officials in the South as well as in the East!
Sri Lanka’s administrative culture has long been to withhold important government information.
Stepping out of that frame of mind and considering information requests as easing the work of the authority requires a change of mindset which cannot happen overnight. It needs to be cultivated with time and proper awareness raising.
An informal RTI process
The RTI Act applies to public authorities as defined in the Act. Constitutional and statutory entities, government departments and bodies, corporate bodies in which the government has a controlling interest, local and provincial authorities, courts, tribunals and institutions established to administer justice and private entities working under contract, agreement, licence or a partnership with the government (where their statutory or public service or function is concerned) are all covered.
Also included are higher educational, private vocational or technical education institutions established, recognised or licenced under any written law or funded wholly or partly by the State and non–governmental organizations rendering a service to the public. This definition is one reason why the Act received such a high ranking internationally.
The experience of the past one week shows that some PAs have refused to accept information requests. That is unacceptable. Information requests can be submitted by phone or through letter or even on a plain sheet of paper with the necessary details given.
Prioritising life and liberty
The request must be processed as soon as possible and in any event within 14 days. If the decision is in the positive, then the information must be given within another 14 days. In total, 28 days can be taken at maximum. But if it is shown that an information officer is deliberately delaying giving information even within that 28 days, the RTI Commission can recommend disciplinary punishments. Extensions can be asked for in special situations.
When the information relates to confidential information supplied by a third party to the Public Authority, the information officer must ascertain the views of the third party but the Commission can order disclosure if the public interest demands it. An important protection provided by the Act is that when an information request concerns the life and personal liberty of a citizen the response to the request should be given within 48 hours. If such information is not provided within the stipulated time, it can be appealed against.
This provision has been used when abductions or enforced disappearances occur in other parts of the world. Suffice to say, Sri Lanka can learn from those experiences. The Act overrides all inconsistent enacted law so RTI is given a special importance. This is a significant victory achieved by the drafters so it must not be frittered away.
Further strengthening through rules
The RTI Commission’s rules on fees and appeals and its proposal of key regulations, gazetted on February 3rd, enhance the value of the RTI Act. Now the Act’s pro-active disclosure regime is strengthened, criteria is provided for appointments of information officers and an open re-use policy is laid down.
The fee schedule is considerably liberal. There is no application fee involved in making an information request unlike other countries in this region. Further, it provides for a number of instances where the information can be obtained free. Information provided through email is free, the first four pages of a print out or a photocopy is free and the first one hour of inspection of a document is free.
Providing a standard setter in the region, the RTI Commission’s rules state that information is granted free upon a successful appeal. Reimbursement to the requestor of information can also be directed by the commission if information is not given within the stipulated time. The regulations state that when the information relates to another public authority, the duty is on the information officer to transfer the request to the said public authority. This avoids the requestor being unnecessarily sent from office to office in search of information.
Justifying refusals and the public interest override
All rejections of information must be based entirely on the exemptions specified in the Act which are all subject to the ‘public interest’ override. In other words, if the disclosure of the information is necessary and outweighs the harm in disclosing such information, it shall be disclosed. In India, blanket exemptions to RTI were given to specific government agencies against public protests when that law was enacted in 2005. We must be happy that Sri Lanka was more enlightened in that regard. On appeal the burden falls on the public authority to prove that the public interest is not to be gained by disclosing the information.
The aim of Sri Lanka’s RTI Act is not to challenge PAs or put them on the defensive. Rather, it is to encourage pro-active disclosure. Put simply, this means that information must be disclosed voluntarily without being compelled to do so. This is what the recently gazetted regulations under the RTI Act sought to strengthen.
Proper implementation will depend on how the Commission functions once it starts receiving appeals. Its financial and functional independence is crucial to its work. The support of the public and the State is essential. Such steps will assist in gauging the success of the RTI Act in the coming months and years.
(The writer is the Legal Researcher to the Right to Information Commission. Â The views expressed are in her personal capacity.)