Access to Information Bill

Jun 19, 2011 Editorial

After years of hemming and hawing following sustained prodding and pushing by the opposition and other civil society groups, the government has tabled what it calls an “Access to Information Bill”. With the Bill being sent to a Special Select Committee upon the government’s request, there is no way it will receive its second reading, debate and third reading before the President dissolves the National Assembly by the end of August at the latest, for General Elections.
But the introduction of the Bill has to be regarded as progress, slow and late as it may be. It is our hope that opposition elements in the Select Committee will not conspire with the government to bury the Bill for another five years as they did with the just as critical Disciplined Forces Report. As the government itself conceded in its Explanatory Memorandum of the Bill, the right to freedom of information is increasingly accepted as a necessary aspect of participatory democracies.
And this brings us to the first two recommendations we want to make. Since freedom of information is a fundamental right, we cannot understand why the government insists on labelling the Bill tepidly as an “Access to information Bill”. The title of the Bill should be “Right to Freedom of Information Bill” to ensure that implementing bodies are clear that access to information is not a discretionary gift granted to the people by a benevolent government. It is a constitutionally mandated obligation on the government to implement the corresponding right.
The Bill seeks to establish “a practical regime of right to information for persons to secure access to information under the control of public authorities.” Firstly we hope that this “practical regime” does not take too long to establish in its performative aspects.
To be blunt, with the archaic systems and methods of gathering and maintaining our public records, one can foresee tremendous delays by the authorities to comply within the sixty-day stipulated period. The government will have to ensure that these practical systems are in place to execute the “practical regime.”
Secondly the definition of “public authority” seems to be unnecessarily narrow and we believe that it should include all bodies substantially funded by the Government. At a time when the Government is increasingly outsourcing and in some cases have already privatised the provision of public services – in the electricity and telephones transport sectors for example – it is important that the public still has an assured right to access to information about these services.
The legislation covers only the operations of the Executive and Judicial Branches and we do not understand why the Legislative branch is exempted. Maybe the proviso should be for all bodies established under the Constitution – with of course the legal exceptions.
And of course given the history of our country, these exemptions should and will receive strict scrutiny. While keeping in mind the overarching principle of maximum disclosure, it should be accepted that there has to be a small number of legitimate exemptions in any access regime. The emphasis has to be on “small”.
In the US, the country that has pioneered the introduction of Freedom of Information legislation and practice, there has been a worrying and inexorable increase in the number of exemptions. We cannot go down this road.
Exemptions to the rule of maximum disclosure should be kept to an absolute minimum and should be narrowly drawn. The key principle underlying any exemption is that its purpose must be to genuinely protect and promote the public interest. Even where exemptions are included in legislation, they should not apply to documents more than 10 years old.
Further, all exemptions should be subject to the blanket “public interest override” whereby a document which falls within the terms of a general exemption provision should still be disclosed if the public interest in the specific case requires it.
The blanket exemption for the President is too broad in our estimation because it is not tempered by the public interest override. This is a major deficiency and should be rectified.
(To be continued)

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